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?
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?
posted by Garrett at 3:04 PM
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