Book Review: Active Liberty

I read Supreme Court Justice Stephen Breyer's Active Liberty on my plane ride to California last week. I'll review it, but first, I should note that my review will be unfair. Breyer is a sitting Justice, so he can't say what he really believes on many issues. His book is only 135 very small, widely spaced pages. The Court's legitimacy and his legacy come ahead of honesty for him. Think of it this way: if I asked you to tell me everything you knew about sex, and you knew your mother was listening, a full-fledged critique of your response wouldn't be very fair, would it? Likewise with Breyer. Nevertheless, I'll review what he actually wrote, not what I think he might have written if he were unencumbered by his position on the Court.

Breyer begins by invoking Benjamin Constant's distinction between 2 kinds of liberty: the liberty of the ancients (the collective freedom to enact laws to govern one's community--e.g., the right to vote) and the liberty of the moderns (the individual freedom from government interference in certain areas of one's life--e.g., the right to free expression). Cf. Isaiah Berlin, Two Concepts of Liberty, Inaugural Lecture Before the University of Oxford (Oct. 31, 1958), in Four Essays on Liberty 118 (1969) (distinguishing between positive liberty--similar to the liberty of the ancients--and negative liberty--the liberty of the moderns). (Interestingly, though Breyer never notes it, Constant argued against the liberty of the ancients and for the liberty of the moderns.)

Breyer argues that the Constitution's primary objective is to promote the liberty of the ancients--what Breyer calls active liberty. For example, the Constitution prescribes the manner through which we elect our government officials and limits their term lengths. Even the modern liberties protected by the Constitution, Breyer argues, are designed to promote active liberty (for example, the 1st Amendment protects free speech to ensure that citizens can discuss how they ought to govern themselves).

Thus, Breyer concludes, active liberty should be the purposive lens through which judges should interpret statutes and the Constitution. Judges should be pragmatic, considering the likely consequences of and values embodied in each case and deciding each case based on the outcome that will promote active liberty to the greatest extent.

Side note: If you've read John Hart Ely's Order-of-the-Coif-winning Democracy and Distrust (1980), you might be forgiven for wondering whether Breyer's book has already been written. And nowhere does Breyer cite Ely's book (which, by the way, is the most-cited legal book year after year). Hmmmmm.

Generalities don't decide concrete cases, though, so Breyer illustrates his method at work through 6 examples: free speech, federalism, privacy, affirmative action, statutory interpretation, and judicial review of administrative agency action. So, for example, the purpose of the 1st Amendment's protection of free expression is to protect public debate from government interference. Thus, political speech aimed at shaping public policy deserves the greatest level of constitutional protection from government interference. Commercial speech, on the other hand, serves a different purpose, so it doesn't warrant the same constitutional protection. Breyer's 6 examples take up the bulk (70 pages) of the book.

The book finally gets good in the last 15 pages. Breyer takes on literalists (read: Scalia). He argues that their method is unsatisfactory for a number of reasons. First, the framers of the Constitution didn't prescribe an interpretive practice for judges to use, so literalists can't resort to original intent to justify their method. Hence, Breyer argues, they have to justify their method through consequences--for example, protection of the law from judges' subjective values, promotion of the will of the people, etc. (Ronald Dworkin makes this point well in response to Justice Scalia's textualism in A Matter of Interpretation.)

But once literalists start to play the consequences game, Breyer has them on the ropes. With respect to discouraging judicial subjectivity, judges who adopt his method are aware of how far-reaching their decisions may be. And they understand the need for rule-of-law virtues like stability, predictability, and consistency with their prior decisions. (NRF told a story in class that Justice O'Connor, a fairly purposive Justice, had on the couch in her office a pillow with stitching that read: "Maybe in error, but never in doubt." Intellectually, that pillow makes me want to puke, but I understand the need for such a principle in the highest Court of the land.) Third, consideration of consequences doesn't mean the judge gets to pick the outcome willy-nilly. Rather, they decide cases based on the purpose of the democratic text they're interpreting. (This last point is certainly a straw man. Nobody but the most caustic legal realist believes that judges decide cases willy-nilly. A more intellectually honest defense would feature Breyer's explanation of what judges should do when a statute has multiple purposes that conflict with one another.) And even when purposive judges do deviate from prior law, such deviation is not always a bad thing. You don't want to reaffirm Plessy v. Ferguson, do you? (Unfair, I know--regardless of the merits of the legal reasoning in Brown v. Board of Education, everyone has to sing its praises.) Finally, literalism is not entirely free of judicial subjectivity. Plain meaning of statutory language, structure, and history often fail to provide an unambiguous answer, and many canons of interpretation conflict with one another. Thus, literalism has its own inherently subjective elements.

With respect to producing clear rules, literalism sometimes fails in cases where statutory language has multiple plain meanings. Purposivism can produce clarity through metaphors and examples (after all, the common law worked that way). Moreover, "[e]very law student whose class grade is borderline knows that the benefits that rules produce for cases that fall within the heartland are often lost in the cases that arise at the boundaries."

With respect to fidelity to democratic will, excessive literalism can thwart the intent of the people. Let's be realistic about how democracy works, Breyer says. Citizens don't parse statutory language to determine whether to reelect a representative; they listen to the representative's statement of her values. Hence, we should interpret statutory language in light of those values.

Although Breyer titles his last chapter "A Serious Objection," he certainly doesn't respond to the most serious version of the objection to his method of interpretation. His argument rests on the unsubstantiated assumption that all statutory or constitutional text has a single, easily discernible purpose. When this single purpose isn't obvious, Breyer instructs judges to ask what a reasonable legislator in the position of the enacting legislature would have done. But though jurists talk about reasonable as if it connotes an objective point of view, judges can't step outside of their beliefs and experiences to take on a "view from nowhere." For example, in Romer v. Evans, Justice Kennedy thought Colorado's Amendment 2 (banning state and local government from protecting gays from discrimination) was unreasonable; Justice Scalia vigorously disagreed. This criticism isn't impossible to overcome, but I think it's something Breyer should have addressed in the book.

Moreover, Breyer rests his argument on a fairly rosy conception of democracy. If most statutes were the result of interest group deals among large corporations, would he still support a purposive interpretive method?

I think my strongest criticism of Breyer's book, though, is that I doubt it convinced anyone to adopt his interpretive method. Indeed, I doubt it was intended to convince anyone. Instead, it seems like an attempt to shape his legacy.

Interestingly, the current issue of the Yale Law Journal features 3 reviews of Breyer's book that I've yet to read--by Richard Posner, Cass Sunstein, and Paul Gerwirtz.

Thoughts?

Delicious Irony

I've been meaning to post this comment for a while, but exams come around, and other things become more important.

In tort law, there's a concept called respondeat superior. It literally means "let the master answer," and it's a doctrine that, stripped of all its nuance, holds employers liable when their employees negligently injure somebody on the job. So when you get run over by a UPS truck, you can recover from UPS instead of Bob, the UPS driver who actually ran you down.

Respondeat superior seems like a very progressive doctrine for 2 reasons. First, it increases the chances that the victim of negligence will be able to recover (employers are more likely to have pockets deep enough to pay the award). And second, employers who enjoy the benefits of risky behavior (after all, if Bob drives 95 mph instead of 55 mph he can deliver more packages for UPS each day) must internalize the costs of that behavior. (You might argue that respondeat superior isn't so wonderful when you consider that, as a result of the doctrine, employers pay workers less and hire fewer of them. A fair point that raises an empirical question.)

The delicious irony is the historical development of respondeat superior. It first arose in Roman law because slaves were not considered people. As a result, if a slave injured you, you couldn't sue the slave in a Roman court because only legal persons can be parties to a suit. So Roman law let you sue the slave's master. A legal doctrine that began as a paradigm of inequity has evolved into a wonderfully progressive doctrine!

Rawls vs. Sandel

The argument in my last post is called the communitarian critique of liberalism. It's associated with names like Michael Sandel, Michael Walzer, and Alasdair MacIntyre.

But some intellectual heavyweights disagree. Guys like John Rawls, Ronald Dworkin, and Thomas Nagel think that the kind of morality that governs social and political institutions is different from the kind of morality that governs personal life. Indeed, those 2 kinds of moralities don't even derive from a common principle. (I think the difference is a result of the powerful collective agency of the state.)

On this argument, Rawls et al. believe that one can defend a liberalism in which women have the right to choose without engaging with the Christian belief that human life begins at conception.

I don't fully understand the Rawls position. Can someone explain it to me?

Another Listserve Discussion

The Law Students for Choice (LSFC) listserve is having a heated yet fascinating discussion on contraception and abortion. Actually, I am the cause of the friction. I am trying to make them realize that the root of their (and all) pro-choice arguments rests on a definition of when a human life begins.

Those who admitted that the definition is a crucial part of their argument responded in the following fashion:

"The Christian Right can define the beginning of human life however they want. But they can't impose that definition on me."

I think (argue with me if you think otherwise) that this response (1) is disingenuous; (2) is enormously common; and (3) represents the central problem with liberalism. Why?

Liberalism says to citizens: The state won't provide you with values. Go find them yourself in religion, philosophy, whatever. So, in the context of the LSFC discussion, Christians go to the Bible to find their values. Their interpretation of the Bible tells them that life begins at conception.

But then, when citizens go to religion and find a set of values, the state says: Whoa! Don't bring those into the public sphere! Don't legislate your definition of the beginning of life on other citizens!

"But wait!" say the conservative Christians. "You told me to get my values from elsewhere. Now you're telling me I can't act on the moral implications of those values! That's disingenuous!"

We grow up hearing cliches like "It's a free country." But we don't realize that liberalism is not value-free.

That last statement is not a condemnation of liberalism, but it is a call for a more intellectually honest defense of liberalism. Instead of saying "Liberalism is good because it is value-neutral," we should be saying "Liberalism is good because ________." (What you put in that blank will probably be some sort of defense of autonomy.)

Thoughts?
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GC: Update: Thomas Nagel disagrees with me. Not a good thing. On the plus side, Michael Sandel agrees with me.

Guns and Con Law

No, this post isn't about the Second Amendment.

I'm reviewing for my Constitutional Law exam on Friday, and I'm noticing the repeated emphasis the course placed on political legitimacy. If you see what the Supreme Court is doing as legitimate, you may hate its decisions, but you abide by them because you see the process as fair. But if you see it as illegitimate, you get mad. And if it's illegitimate enough, you grab your guns. See Iraq. Law is a game played in the shadow of the state of nature.

So why isn't there more legal scholarship on the current level of the judiciary's legitimacy? (Maybe there is; I didn't do any research to see.) Justices occasionally discuss it in a case, but usually as a reason to avoid protecting an individual right (Casey is an exception). If they are serious about using the Court's legitimacy as a reason to avoid taking the law in a progressive direction, shouldn't they want some evidence for the likelihood that people will grab their guns if they decided the case the other way? We seem to be pretty far away from that point; can you imagine a president telling the Court in response to a politically unpopular decision: "The Supreme Court has made its decision; now let them enforce it" (President Andrew Jackson's apocryphal statement)?

Richard Posner makes a related point in the book I'm currently reading, Law, Pragmatism, and Democracy. He argues strongly for a pragmatic approach to the judicial function; at times, that approach might adopt a strongly formalist tone to lend legitimacy to a decision. Legal formalism makes it sound as if the law compelled a single "correct" result in every case, thus mitigating the judge's responsibility for an unpopular decision. Formalism is what Clarence Thomas is doing, for example, when he says that the anti-sodomy laws in Lawrence v. Texas seem "uncommonly silly" to him, but the Constitution obligates him to uphold them. A legal realist would say that he is being disingenuous; if he really disliked those laws, he would strike them down.

(For those of you who've read Lon Fuller's The Case of the Speluncean Explorers: Handy's opinion sounds strongly in legal realism. I love his opinion, but it becomes a good deal more problematic when he reaches an unpopular result. Then an important consideration becomes the Court's legitimacy.)

So why don't legal scholars talk about the Court's legitimacy more? (You might say that public discussion of legitimacy undermines that legitimacy by turning the Court into a blatantly political organ. Fair point. But really, how many people read law review articles?)

Don't Forget to Tip Your Waitress

Amartya Sen told a great joke on Sunday night:

Two Italians are talking politics. One says to the other: "I can't be a Fascist; I have to be a socialist. My father was a socialist, and my grandfather was a socialist, and my great-grandfather was a socialist, and so was his father."

The second says to the first: "That logic is silly. What if your father was a murderer, and your grandfather was a murderer, and your great-grandfather was a murderer, and his father, too?"

The first responds: "Well, then I would be have to be a Fascist."

Viva Evo

In the past, nationalization of an industry like natural gas in a country like Bolivia was a recipe for disaster. Skittish foreign investors, worried that their assets are next on the nationalization list, high-tail it out of the country as fast as they can in an economy-wrecking phenomenon called capital flight. Leaders in these countries were between a rock and a hard place. If you don't nationalize, your country thinks you are a sellout to the Americans. If you do nationalize, capital flight occurs, and your country blames you for the widespread poverty and lack of jobs. See, e.g., the recent documentary Our Brand Is Crisis.

Are those days over?

Maybe. With Chavez in Venezuela, President Evo Morales's decision to nationalize Bolivia's prosperous natural gas industry (they have the most gas in South America) might work. Capital flight will probably occur (mostly from places like Brazil), but Chavez, another left-leaning leader currently enjoying enormous profits from high worldwide oil prices, is very sympathetic to Morales and will probably help Bolivia out.

This situation is a bit like the Cold War, only we're so preoccupied with the Middle East that we hardly notice it's happening; thus, we're unlikely to put the same pressure on countries considering nationalization of major industries. As a result, countries are a good deal freer to make a choice to take their economies left-ward without serious consequences.

Thoughts/predictions?