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Speaker: The Honorable Stephen Breyer, Justice of the United States Supreme Court
Summary by H̩elene Landemore, Edmond J. Safra Graduate Fellow in Ethics
Opening his first Tanner lecture, Justice Stephen Breyer – joking about himself as being the most senior junior Justice the Supreme Court ever had – invoked the three reasons behind his desire to talk about democracy as the central notion of his interpretation of the American Constitution.
The first set of motivations, he said, had to do with his desire to share his experience as a Supreme Court Justice. Constitutional questions, he remarked, are the daily diet of a supreme justice, forcing him over time to get an overview about how the constitution fits together and thus develop a general unifying picture of its many doctrines. The unifying picture that Justice Breyer then claimed to have forged for himself revolves around the notion of democracy. The American Constitution is about the protection of certain rights, equality, and the rule of law, and democracy is at the center of those notions. How and why is democracy at the center is one of the questions he hoped to answer in these lectures.
The second set of motivations for his speech was to answer the following question: how does the constitution and its themes come into play in the life of a supreme court? Insisting on his intentional use of the word “theme,” Justice Breyer suggested a structural analogy between constitutional and musical interpretation. As in music, there are in the constitution “themes,” which different doctrines can play in different ways, but which nevertheless together form a consistent pattern. Constitutional interpretation is, for Justice Breyer, more akin to an art than a precise science. It consists in looking at languages, values, history, purposes, and texts, and composing a consistent tune out of them all, not inventing it out of thin air or, as he added, “coloring up what you feel with a little logic.”
The third reason for his being willing to talk about the American Constitution is to correct a misconception about what the Constitution is about. Most people think, wrongly in his view, that the Constitution is about a list of essential rights, such as “free speech,” or a “right to privacy.” But, although those rights are part of the Constitution, they are not what the Constitution is about. The Constitution is about, he insisted, democracy.
Justice Breyer then gave the overall map of his speech. The first part would consist in an introduction to the concept of “active liberty,” followed by a historical part about what he deemed to be the democratic intentions of the Founders. In a third part, he would examine six examples and illustrate with them how the democratic “theme” helps decision-making in certain difficult areas. The examples would be drawn from the areas of free speech, federalism, privacy, affirmative action, statutory interpretation, and judicial review of administrative regulation. A fourth part would then be devoted to listing and answering the great objections to his view emanating from alternative theories of constitutional interpretation. Although he acknowledged distinctions between what are called “originalism,” “textualism,” and “literalism,” he would lump them together for the sake of simplicity under the common label of “originalism.” In a brief fifth part, he would wrap up the lectures with a final postscript.
Justice Breyer thus proceeded first to introduce the core concept of his speech: that of “active liberty.” Relying on Benjamin Constant’s famous distinction between the liberty of the ancients and the liberty of the moderns, he insisted that, far from privileging one definition of liberty over the other, the Constitution had both at its heart. However, courts, including the supreme court, should take greater account of the democratic nature of the constitution. This democratic nature is located, according to Justice Breyer, in the liberty of the ancients, i.e. the liberty consisting in “an active and constant participation of citizens in collective power.” Whereas the liberty of the moderns merely translates into individual independence, the liberty of the ancients demands “submitting to all citizens without exception the care and assessment of their most sacred interests.”
“Active liberty” thus forms, in Justice Breyer’s view, the democratic heart of the Constitution. This claim is first an argument for judicial modesty. Constitutional interpretation is not a science and judges can claim no expertise. More generally, he said, doubt, caution, and prudence are the spirit of liberty itself. Justice Breyer also insisted that, according to his argument,“active liberty” ought to be both the source of judicial power and a guide when interpreting other parts of the constitution. In other words, the Constitution’s democratic objective is not simply a restraint on judicial power, or a counterweight to its protection of individual liberty, but also a source of judicial power, and an interpretative aid to making protection of that freedom more effective.
Active liberty demands that, ideally, a line of authority be traced for all political decisions back to the people themselves. This is feasible either directly (by referendum) or indirectly (through the representatives). Moreover, people should be able to participate in government, at least at a minimal level. Participation is most forceful when it is direct, involving for example town meetings or political party membership, but important also when it is vicarious, reflected in the understanding that each individual belongs to the political community with the right to participate should he choose to. Finally the people and their representatives must have the capacity to exercise their democratic responsibilities, which means that they should be both informed and educated. The notion of “active liberty,” therefore, refers to those strains having to do with legitimacy, capacity, and education.
Increased judicial emphasis on the right of people to active and constant participation should help judges better resolve important interpretative issues and bring about better law. To that notion of a “better law,” collective deliberation is a central element. According to Justice Breyer, his argument justifies an appeal to consequences and the relation between interpretation and ways to promote this “better law.”
Opening up the second, historical part of his speech, Justice Breyer set out to prove that his definition of “active liberty” was consistent with what he claims the Framers’ intention to have been all along, namely that of building a Constitution with democracy at the heart of it. Acknowledging skeptical nods among the rows of historians in the audience, Justice Breyer humorously defended his argument against the charge of being mere 4th of July rhetoric. He argued that a degree of delegation, as required by the Framers, was democracy still, not hidden attempts to control and limit it. He argued further that the Constitution was initially conceived of as a democratic check upon the potential power to oppress present in any government. By trying to save the Republic from the risks of anarchy attached to direct democracy or the tyranny of the majority, the Framers were not retreating from democratic principles, but implementing them more faithfully. Justice Breyer then quoted Madison’s famous words about the Constitution – “This is a charter of power granted by liberty, not a charter of liberty granted by power” – as expressing exactly his personal experience of what the Constitution was about.
Justice Breyer further argued that American democracy was democratic at all levels, whether directly (with the representatives) or indirectly (with the senate and the president). A degree of indirectness is necessary, he argued, not as a principled way to limit democracy, but as a pragmatic way to deal with the complexity of a large democracy such as America. Indirectness is required by efficiency considerations: we want a government that works. Yet each branch, whether the Congress, the Senate, or the Electoral College, finds its origin and legitimacy in selection by the people. Invoking Federalist 10, Justice Breyer argued that complexity, as illustrated in the system of checks and balance, is what was meant to protect democracy. Interestingly, he remarked, Europeans in their efforts to write a new Constitution, are looking back into Madison’s ideas. They are indeed facing now exactly the problems he faced two hundred years ago.
Justice Breyer finally turned to the first three illustrations of his main thesis that active liberty ought to be at the heart of constitutional interpretation. He considered successively the issues of free speech, federalism, and right to privacy. All these examples – carefully chosen to support his point, he joked – were meant to illustrate his method of making up his mind by balancing probable consequences in light of the democratic intentions he read into the Constitution.
The issue of free speech shows the difficulties involved in constitutional interpretation. A principle such as “Congress shall pass no law abridging the freedom of speech,” in its obvious vagueness, leaves much to personal discretion. Since all human life is carried on through speech, if there is only one standard for speech, we are bound to allow everything. Yet most existing laws – anti-discrimination law, health laws, communication laws – involve speech, and therefore abridge it somewhat. What is the standard for “unabridgeable speech”? Should we strike all laws down? Have a lax standard? But then what about people who want to regulate political speech, artistic speech? It just will not do, Justice Breyer insisted, to have one single standard for speech. The solution to this conundrum consists in defending a strong standard that is going to protect the democratic process, lest we undermine the principle upon which the constitution itself rested.
Justice Breyer thus evoked campaign finance, which represented an important case in the Supreme Court in 2003. Congress were concerned that the few who give large amounts influence politicians – a fear largely shared in the country. Supreme Court Justices spent a month studying campaign finance laws, wondering whether limits should be imposed on the amounts that companies, individuals, or labor unions for example, can contribute. Although money is not speech, the expenditure of money enables speech. By suppressing the medium, wouldn’t one run the risk of suppressing the message as well? Breyer then appealed to his active liberty principle. If one understands the first amendment as trying to protect active liberty, then free speech is protected in order to support a conversation among ordinary citizens, not to support their negative liberty to say whatever they want. These campaign finance laws seek through regulation a similar objective. They want to build public confidence in politics and encourage greater public participation..
Regarding federalism, Justice Breyer remarked that it raised three great questions. Do experts or bureaucrats make the decisions, or “we the people”? If the experts make all the decisions, democracy is attacked in its principle, but if the people make all the decisions, democracy becomes impotent (Justice Breyer evoked the notorious historical failure of Pennsylvania at functioning as a direct democracy). The second question regards the level at which decisions ought to be made. Should decisions be local, national, international, or even global? Active liberty, said Justice Breyer, can help answer this question. Finally, a third question is “who guards the guardians?,” or, more precisely, “who regulates the regulators?” - a locus classicus of administrative law. Defending the idea of a “cooperative federalism,” Breyer argued that the government ought to be involved even in technical questions.
Finally, Justice Breyer turned to the issue of privacy, exposing the difficult trade-offs between liberty and security involved in today’s society. He suggested that, here again, the notion of “active liberty” could help explain and clarify certain issues related to the protection of privacy. He suggested for example that we should not necessarily always, or a priori, object to, for example, the police being able to zero in on all private cell conversations, companies gathering informations about us, or health records being readily available. These invasions of privacy ought to be set against corresponding advantages in terms of safety, economic gains, or life-saving opportunities. All in all, these examples show that courts should not adopt overly rigid methods of interpreting the Constitution, but to the contrary proceed “practically.”