Justice Breyer Takes 'Originalists' to Task In a New Book - 'Active Liberty' ('POS Alert')

Wall Street Journal ^ | 8/23/05 | Jess Bravin

[Sam Cree]

Thank you for the quote by Madison, Justice Breyer could do worse than to read and memorize it. IMO, he should write it on a blackboard 1,000 times. Hell, a million.

Reading the article from WSJ on Breyer's book fills me with a cold rage, silly as that sounds. But it does.

Breyer is taking (what are apparently his beloved) principles of socialism and trying to distort our Constitution into alignment with them. He couldn't be more wrong, nor more evil.

The obvious fact is that the Constitution appoints the legislative body, Congress, to the "activist" role. Not the judicial body. And even the legislative body is bound by the same Constitution to very narrow duties. Unprecedentedly narrow duties for those days, and seemingly for these days.

To me, the entire idea of an "activist" constitution begs the question: Why even have one if it is not meant to bind our leaders to certain behavior? Activism is very well taken care of without such a thing by every government in the world.

Breyer, however, clearly thinks of the Constitution as an essay on utopian goals of democracy and egalitarianism, toward which the Supreme Court is empowered to force the population. Toward the common good, through central planning, to paraphrase his shockingly socialist writing for the Kelo case.

He's very wrong, the Constitution defines the powers of the federal government and defines the relationships to each other of the states. And very litte else.

The point is that our founders were fabricating a country in which the government, while being instituted to protect their freedom, was also limited in its power over the people by a constitution. The people were to be protected *from* their government by that Constitution. And, thus, as your quote points out so elegantly, protected from themselves. From using democracy to vote their rights away, or to vote the rights of others away.

As long as Breyer wishes to use his power to increase the freedom of the individual in America, which our legislature is doing away with as rapidly as ever it can, I am with him. Instead, however, it appears to be his wish to impose on the citizens of America by force his personal ideas of equality. By doing this, he is engaging in nothing less than the destruction of our liberty. That he is doing it in the name of the Constitution takes my breath away.

But at least I now know his mind.

[Aetius]

>>>A judge's task, he says, is construing the Constitution in a way "that helps a community of individuals democratically find practical solutions to important contemporary social problems." He calls that freedom to participate in government "active liberty," a complement to passive liberties that protect the individual from interference by the government.<<<


Of course, democratic solutions are only acceptable if they result in the implementation of leftwing policy. Democratic moves to ban gay marriage and restrict abortion, for example, can't be tolerated by the likes of Breyer.


What we really need is an Andrew Jackson moment where one or two or both of the other allegedly coequal branches simply defy the Court.