Mystics of the Court: Stephen Breyer’s activism

National Review Online ^ | December 14, 2005 | Rep. Tom Feeney

[stop_fascism]

Give Supreme Court Justice Stephen Breyer his due. With the publication of his new book Active Liberty, he enthusiastically embraces a mea culpa approach to allegations that Supreme Court justices invent, recreate, and expand constitutional principles as they please. Viewed as a response to Justice Antonin Scalia's A Matter of Interpretation, Breyer’s book, openly advocates for the notion that U.S. constitutional law is whatever a majority of Supreme Court justices wishes based upon their own notions of what "democracy" and fairness should produce. In other words, I and thousands of other attorneys wasted our time taking constitutional law since that jurisprudence boils down to the ability to count to five.

Breyer attacks "textualism" or strict construction and advocates that appointed judges have implicit powers to impose "democratic" results on citizens even if that entails overriding decisions of elected legislatures. He argues:

In a word, my theme is democracy and the Constitution. I illustrate a democratic theme — "active liberty" — which resonates throughout the Constitution. In discussing its role, I hope to illustrate how this constitutional theme can affect a judge's interpretation of a constitutional test.

Breyer essentially resurrects the notion of a "living Constitution" that adapts to current cases, controversies, and thought. As he notes, the Founders "wrote a Constitution that begins with the words 'We the People.' The words are not 'we the people of 1787.' " That difference in words provides carte blanche for Breyer and at least four other Justices to conjure up post-modern meaning to the document's words. Here's one practical lesson for laymen: When drafting a contract, don't say "I agree to do X." Say "I in 2005 agree to do X." Otherwise, some judge may divine future obligations you never contemplated.

This notion of a static Constitution permanently rooted in 1787 conveniently ignores Article V's amendment process and the subsequent 27 amendments. This process requires obtaining approval from two-thirds each of the Senate and House of Representatives and three-quarters of the state legislatures — a true manifestation of what We the People of [fill in the year] desire. It's much easier to engage in what I call "jurisprudential mysticism" and count to five.

Breyer argues for an "independent judiciary" to implement "active liberty." But the real question is judicial independence from what? No responsible policymaker has suggested that the judiciary should not be independent from the executive and legislative branches. If the proposition is that the court system in adjudicating cases or controversies should not be subject to coercion by the executive or legislative branches (e.g., firing judges, reducing their salaries, filing criminal complaints, vetoing or overturning their decisions), everybody agrees. During good behavior, federal judges cannot be fired, have their salaries reduced, be voted out of office, and with respect to decisions on the meaning of the Constitution, be overturned by Congress.

That extraordinary power is tempered by the judiciary's limited role as a mere umpire applying the law or interpreting the original meaning of the Constitution. Or at least that's why the Framers adopted Montesquieu's notion on the separation of powers, as illustrated by Madison in Federalist Paper No. 47:

The judges themselves can exercise no executive prerogative . . . nor any legislative function. . . . "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor." (quoting Montesquieu)

But Breyer rejects such limitations. He wants an "independent judiciary" under the guise of "active liberty" to impose "democratic results" that representative, elected legislatures, and Congress have refused to impose on us. Judges imposing biased versions of "active liberty" for "democratic results" is an oxymoron: Policies dictated from the bench that nullify decisions made by representatives (statutes enacted or proposals rejected) elected in regular elections are, ipso facto, not democratic.

Breyer's Crystal Ball Breyer gives several examples of how jurisprudential mysticism can improve on the Constitution gifted to us by our Founders and as explicitly amended through the prescribed amendment process. Two applications of the First Amendment illustrate.

As to campaign finance laws, Breyer notes: "Comparable expenditures for elections in foreign democracies are far lower" than in the U.S. So in the 2003 case of McConnell v. Federal Election Commission, Breyer and his colleagues limited the First Amendment's protection of campaign speech. If free speech during elections wasn’t a key concern of the Founders in drafting the First Amendment, what was on their minds? Undermining the First Amendment during elections because other countries have less freedom is part of the approach that Yale Law School dean Harold Koh approvingly describes as the "Transnationalist Judiciary."

Under this jurisprudence — affirmed by six current Supreme Court justices including Breyer — contemporary foreign laws, constitutions, polls, traditions, fads, and customs inform Supreme Court justices on the original meaning of our Constitution. Never mind that our Founding Fathers, the Federalists and Anti-Federalists, 13 original states, and every state admitted since 1787 relied on the text of this Constitution. The intent of our Founding Fathers and the states that ratified the Constitution and its amendments must now give way to overseas laws, constitutions, and cultural activities. Active liberty means surrender of sovereignty, not to mention imposition of laws no American citizen or his representative had a chance to vote for!

In addition to free speech, the First Amendment requires that "Congress shall make no law respecting an establishment of religion." Breyer defends his decision to prohibit school vouchers that parents could use for parochial schools because "the [establishment] clause seeks to avoid among other things the social conflict, potentially created when government becomes involved in religious education." He nowhere explains how he mystically discerns this intent of the Framers, but asserts that "it was necessary to interpret the clause more broadly than the Framers might have thought likely." So under "active liberty," prohibiting an establishment of a state-sponsored religion requires a judge to transcend the Founders’ intent. Breyer notes: "I am not arguing that I was right. . . . I am arguing that my opinions sought to identify a critical value underlying the Religion Clause."

As Breyer fleshes out other applications of "active liberty," he refreshingly admits that desired results (i.e., consequences) guide his jurisprudence. He asks:

Why should courts try to answer difficult federalism questions on the basis of logical deduction from text or precedent alone? Why not ask about the consequences of decision-making on the active liberty that federalism seeks to further?

Breyer confirmed this view in this exchange with George Stephanopoulos on ABC's This Week on October 3, 2005:

Stephanopoulos: Let me get you to respond to some of your critics, one of them is Rep. Tom Feeney, a member of the House Judiciary Committee. He says nobody but a subjective, biased judge can determine what "active liberty" means. And he calls your approach jurisprudential mysticism.

Breyer: Well, everyone can read this and come to any conclusion they want about it. That's fine. It's his view, not my view.

Stephanopoulos: How do you guard against the idea that it is subjective?

Breyer: That's a very good question. What I try to do in the book is to show that actually a system that refers back in the judge's mind, a framework to basic purposes and then looks at consequences in light of those purposes is more likely to lead to objective decision making, is less likely to lead to subjective decision making.

Breyer admits as much: "To be sure a court focused on consequences may decide a case in a way that radically changes the law." (Emphasis added.) But Montesquieu's and Madison's previously cited concerns about the tyrannical consequences of joining judicial and legislative functions are dismissed. Judges will "understand that too radical, too frequent legal change has, as a consequence, a tendency to undercut those important law-related human needs." In other words, forget constitutional checks and balances. When enacting law from the bench, judges will be constrained by their self-discipline in imposing "radical" changes too rapidly. Judicial mysticism is checked not by the Constitution or the separation of powers but by personal restraint alone.

If the combination of "judicial independence," "active liberty," and an eye towards "consequences" means substituting a judge's personal judgment for statutory enactments or the language of the Constitution, then one is no longer describing limited democratic constitutional government or the rule of law. Such a form of government may well be theoretically defensible. Plato in his Republic suggested that philosopher-kings were the optimal form of government. Since he was a poet, he naturally thought poets (what we would in modern day consider philosophers) should be kings. Perhaps in the modern world, judges would be natural philosopher-kings. That is a form of elite oligarchy or a benevolent aristocracy. But it is not our form of government.

Citizen ignorance justifies Breyer's approach as he claims that "more students know the names of the Three Stooges than the three branches of government." Presumably these Americans are quite competent to take up the burdens of citizenship such as military service or paying taxes but woefully incompetent for democratic self-governance within our constitutional framework. So "active liberty" must be imposed upon us by five unelected and unaccountable justices.

In this book, a sitting justice acknowledges that Plato's governance by philosopher-kings is preferable to the inferior constitutional democratic self-governance gifted to us by our forefathers. Having lost its influence in the executive and legislative branches, the Left — often holding an adversarial stance against its fellow citizens (undoubtedly connoisseurs of the Three Stooges) — finds its last refuge in the judiciary. Rejected by its fellow citizens through the election process, this faction seeks to impose its notions through judicial activism under the guise of "active liberty." No wonder a Senate bloodbath threatens the confirmation of every Court of Appeals and Supreme Court nomination.

Aristotle taught that politics involves free people deliberating the question of how to order our lives together. America represents the best traditions of such democratic self-governance. In this corner of the world, Plato lost. We should be ever vigilant so that verdict isn't overturned under the guise of "active liberty."

[stop_fascism]

Be afraid. Be very afraid.

[thoughtomator]

I believe his "due" is removal from office, given that he is an outspoken advocate for an ideology incompatible with the oath he swore when assuming the post.

[Dead Corpse]

Amen. Does this jackanape actually consider himself a "philosopher King" or anywhere near on par with Aristotle or Plato?

[E. Pluribus Unum]

Mullah Breyer.

[TChris]

I believe his "due" is removal from office, given that he is an outspoken advocate for an ideology incompatible with the oath he swore when assuming the post.

I heartily agree. Now, where shall we find an elected Republican with the intestinal fortitude required to make this recommendation?

*Crickets Chirping*

Bummer...

[Spok]

"Breyer essentially resurrects the notion of a "living Constitution" that adapts to current cases, controversies, and thought."

So if every court can create its own body of constitutional law, of what value is precedent and how predictable does 'the law' become? By his reasoning, Roe v. Wade is good law only until it's summarily overturned by another court, which is exactly the problem that activist judges create. If Breyer has a litmus test for Supreme Court nominees, it certainly wouldn't include feeling bound by precedent. Law becomes mercurial and is subject to total revision with every decision that's handed down. That kind of court could conceivably revive the Dredd Scott decision.

[Sybeck1]

Judge Alito being confirmed and Stevens retirement and replacement with a constructionist, will make this guy a lone wolf howling at the moon.

[hschliemann]

In a word, my theme is democracy and the Constitution. I illustrate a democratic theme — "active liberty" — which resonates throughout the Constitution. In discussing its role, I hope to illustrate how this constitutional theme can affect a judge's interpretation of a constitutional test.

Another view:

From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual.

Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.Madison,Federalist # 10

[HopefulPatriot]

"Now, where shall we find an elected Republican with the intestinal fortitude required to make this recommendation?"

Maybe I can help.

[pawdoggie]

At the risk of revealing my inexcusable ignorance, I didn't know Rep. Feeney from the man on the moon. So I went back and read his bio. He needs to be on the Supreme Court, in Breyer's place. Should I be a decent fellow, or should I act out a "Suzanne Malveaux" and hope that Breyer chokes to death on a chunk of tofu, so that Mr. Bush might replace him (possibly with a Tom Feeney)?

[TheConservator]

Judge Breyer claiming to know what is best for me is exactly like Hitler claiming to have known what was best for the Jews.

This is a significant step in the decline and towards the overthrow of the American Republic.

IMPEACH BREYER!!!!!

[Reactionary]

"I illustrate a democratic theme — "active liberty" — which resonates throughout the Constitution."

The "theme" he's talking about isn't to be found in the Constitution at all. And the Founders were very aware that the principles of equality and liberty were not - and could not be - absolute. In fact, they understood the principles to be in conflict.

Breyer's little philosophy is another castle built in the air. It has no basis in nature. It has no basis in the tradition of natural rights at all.

[Itzlzha]

...Breyer’s book, openly advocates for the notion that U.S. constitutional law is whatever a majority of Supreme Court justices wishes based upon their own notions of what "democracy" and fairness should produce. In other words, I and thousands of other attorneys wasted our time taking constitutional law since that jurisprudence boils down to the ability to count to five.

+ + *

*Some assembly required

[untrained skeptic]

What Bryer is talking about is literally the supreme court overthrowing our system of governemnt and remaking it as they see fit.

It's plain and simple treason.

He should be impeached, charged with treason, and at a minimum spend the rest of his life in jail for his actions.

[ThanhPhero]

I in 2005 agree to do X.

For a liberal that would nullify the document on Jan 1 2006.

[scory]

As noted above this man's ideas are a recipe for arbitrary law. This can only lead to conflict and is a wide-open doorway to tyranny. Unfortunately he is not alone. All three branches of our government ignore the constitution.

Check out the essay at this site:

http://www.theamericanenterprise.org/issues/articleID.18895/article_detail.asp

Our constitutional form of government is in serious trouble. Too many in all three branches of the government simply ignore the constitution or deliberately twist and torture its language to suit their own preferences. I think it is also the case that many in government are simply ignorant of the document and so it never informs any of their deliberations or decisions.

[BenLurkin]

"Breyer’s book, openly advocates for the notion that U.S. constitutional law is whatever a majority of Supreme Court justices wishes based upon their own notions of what "democracy" and fairness should produce."

????????

SCOTUS = super-legislature?

How could someone on the High Court be this ignorant?

[BenLurkin]

"This notion of a static Constitution permanently rooted in 1787 conveniently ignores Article V's amendment process and the subsequent 27 amendments. This process requires obtaining approval from two-thirds each of the Senate and House of Representatives and three-quarters of the state legislatures — a true manifestation of what We the People of [fill in the year] desire. It's much easier to engage in what I call "jurisprudential mysticism" and count to five."

[packrat35]

Breyer’s book, openly advocates for the notion that U.S. constitutional law is whatever a majority of Supreme Court justices wishes based upon their own notions of what "democracy" and fairness should produce.

I think most of us have known this for years.

[WmCraven_Wk]

"Presumably these Americans are quite competent to take up the burdens of citizenship such as military service or paying taxes but woefully incompetent for democratic self-governance within our constitutional framework. So "active liberty" must be imposed upon us by five unelected and unaccountable justices."

Arrogant Bastard.