Review of Active Liberty: Interpreting our Democratic Constitution, by Stephen Breyer, New York: Alfred A. Knopf, 2005. 161 pp.

Originally delivered as Harvard Law School’s distinguished Tanner Lectures on Human Values, Justice Stephen Breyer’s Active Liberty: Interpreting our Democratic Constitution is a remarkably unprincipled book. In its pages, Breyer proposes the substitution of judicial for legislative initiative as the primum mobile of national government, advances the primacy of a formless but catchy abstraction (the giddy but elastic nostrum, “active liberty”) over the particulars of constitution and statute, and promotes a presumably democratic ideal (his own ethereal one, of course) over the rigors of public deliberation and consensus. In Breyer’s hands, the Constitution is transformed from a foundational document of enduring fixed principles into the breezy platitude that “democracy is good,” thereby granting judges a roving commission to do “democratic” things as they see fit. (Never mind that the architects of the Constitution actually sought to mute popular democracy rather than accentuate it.)

To frame his discussion, Breyer draws on the work of the Swiss-born political theorist Benjamin Constant, who famously contrasted “modern liberty” (the negative liberty to be free from government coercion) with “ancient liberty” (the liberty of participatory democracy). Breyer squarely identifies his “active liberty” with Constant’s “ancient liberty” and argues that democratic self-governance lies at the center of sound constitutional interpretation. In so doing, Breyer is seemingly unaware that Constant emphatically preferred “modern liberty” over “ancient liberty.” Indeed, one is forced to wonder whether Breyer actually has ever read Constant, who derisively viewed “ancient liberty” as the handmaiden of Jacobin terror in Robespierre’s France. Nevertheless, touting the right of “the people themselves to control the policy-making activities” of the branches of government, Breyer calls upon judges to “take greater account of the Constitution’s democratic nature” in interpreting the Constitution.

By professing a strong belief in “the people’s basic decency and common sense,” Breyer sheepishly claims the mantle of “judicial modesty.” Yet his curious notion of judicial modesty collapses at even the slightest touch. Rejecting a renewed fidelity to language, history, or tradition, Breyer emphasizes only the “practical consequences” of constitutional interpretation, with an eye towards achieving a “law that helps a community of individuals democratically find practical solutions to important contemporary social problems.” Once sprinkled with the pixie dust of “active liberty,” constitutionally dubious measures like racial preferences and restrictions on political speech are mystically transformed into constitutional measures (so long as they expand, or appear to Breyer to expand, the “right to participate in government”).

With all the sleight of hand of a clumsy amateur magician, Breyer’s bizarre attempt to turn judicial activism, hesto presto, into “judicial restraint” fails miserably. Proclaiming that the Constitution views every individual as equal under the law, he unaccountably concludes that some individuals (for example, low-scoring minority applicants seeking admission to the University of Michigan Law School) are more equal than others. Because campaign finance regulations “help further the kind of open public discussion that the First Amendment seeks to sustain, both as an end, and as a means of achieving workable democracy,” such restrictions are also ipso facto constitutional. Such is the ease with which thorny constitutional dilemmas are summarily dispatched by “active liberty,” the application of which conspicuously lacks any engagement with the actual Constitution itself.

Active Liberty is a brazen call for judicial intervention, and the thoughtful reader will recognize after only a moment’s reflection that Breyer is a snake-oil salesman peddling his own “enlightened” policy preferences. Proper constitutional interpretation, Breyer explains, must allow “considerable latitude” for “differences of view,” thereby manifesting a “spirit” that “seeks to understand the minds of other men and women.” (Presumably, great legal minds must differ on matters as rudimentary as, say, the right to trial by jury or the minimum age required to stand for federal elective office.)

Application of Breyer’s “active liberty” requires that a judge first determine the result that “best furthers democracy” and other “constitutional purposes” by “considering [the] practical consequences” of his decision. This approach, Breyer immodestly assures his reader, will “yield better law”—a task historically and constitutionally reserved for the people and their elected representatives in the legislature. Unsurprisingly, Breyer’s idiosyncratic application of “active liberty” also conveniently greases the skids for an elite liberal social and political agenda, and Breyer heaps praise on the activist Warren Court as an exemplar of “active liberty” in action.