Justice Breyer's Mandarin Liberty
Active Liberty: Interpreting Our Democratic Constitution by Stephen Breyer
Review by: Ken I. Kersch
The University of Chicago Law Review, Vol. 73, No. 2 (Spring, 2006), pp. 759-822
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REVIEW
Justice Breyer'sMandarinLiberty
Ken I. Kerscht
Active Liberty:InterpretingOurDemocraticConstitution,
StephenBreyer.Alfred A. Knopf,2005.Pp ix, 161.
JusticeStephenBreyer arrivedat the SupremeCourtin 1994with
a broad backgroundin academia,governmentservice,and the federal
judiciary,and as one of the nation'sleading scholarsof administrative
and regulatorypolicy and law. At the time, Breyer, a HarvardLaw
School law and economics scholar who had worked effectively as a
congressionalstaffer with members of both parties and had been an
architectof airlinederegulationduringthe Carteradministration,won
broad supportfrom both sides of the aisle.Although extensivelypublished in his areas of expertise,he had written little or nothing about
constitutionalissues,includingmattersof constitutionalinterpretation.
Most of the limitedoppositionto Breyer'sappointmentcame not from
Republicans,but from the left wing of the DemocraticParty,whichsaw
him as a bloodless technocrattoo cozy with business interests and insufficientlycommittedto civil liberties and civil rights.He was nevertheless confirmedby a vote of 87-9.'
t Assistant Professorof Politics,PrincetonUniversity;VisitingResearch Scholar,Social
Philosophyand PolicyCenter,Bowling Green State University(Fall2005).Thanksto Aurelian
Craiutu,Donald Downs,ClementFatovic,RonaldKahn,KeithWhittington,and the participants
in the AmericanPoliticalDevelopmentWorkshopat the Universityof Wisconsin,Madison,for
helpfulcommentsand suggestions.Researchassistancewas providedby TerranceWatson(Bowling Green)and EmilyZackin(Princeton).
1 See Ken I. Kersch,TheSyntheticProgressivismof StephenG. Breyer,in Earl M. Maltz,
the CourtDynamic241,243-44,248-49 (Kansas2003) (dised, RehnquistJustice:Understanding
cussingBreyer'sscholarlypursuits,activitiesin government,and reputationas a "techno-judge");
KennethJost, The SupremeCourtYearbook,2000-2001 335-36 (CQ 2002) (providinggeneral
biographicalinformationaboutJusticeBreyer).See also Ken I. Kersch,StephenBreyer,in Melvin
Urofsky,ed, The SupremeCourtJustices:A BiographicalDictionary(forthcoming2006) (noting
thatfor Clinton'sfirstSupremeCourtappointment,he chose to nominateRuth BaderGinsburg
insteadof Breyer because Breyer"reportedlycame acrossas too cold and technocraticfor the
President'staste").Those looking for a broad overview of JusticeBreyer'sjurisprudenceand
decisions as a SupremeCourt Justiceshould consult these sources.Here, I considerhis book
froma broader,more theoreticalperspective.
759
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Unlike many modern constitutionalliberals,Justice Breyer has
never consideredthe task of interpretingthe law to be, first and foremost, a "matterof principle."2'Accounts of Justice Breyer's jurisprudence (with whichhe would most likely agree) have typicallyended by
characterizinghim as a "commonsense"moderate and judicial"pragmatist,"with a predispositionfor looking beyond the applicationof
formal,a prioriprinciplesin favor of the attainmentof concrete,realworld objectives."His particulartalent has been to read technically
complex regulatorycontexts and to interpret statutes being applied
within them in a way that best advanceswhat he takes to be the relevant regulatoryobjective.He conceives of this task as a problemsolving endeavorin whichcourtsandjudges are only one partof a broader
national-levelregulatoryapparatus.The role of the judge, in Breyer's
view, is to be mindful of the regulatorysystem's purpose as a whole
(and the limited institutionalcapacitiesof judges) and to work as part
of a broaderteam of institutionsfocused on achievingstatutoryobjectives.4
In approachinga policy problem or a case, JusticeBreyer is characteristicallymindful that an appropriatejudgment is possible only
when a wealth of empiricaldata is close at hand. For this reason,Justice Breyer is a committed empiricist.Because legislatorsand expert
administratorsroutinely have a wealth of empirical information at
their command that judges do not have, Justice Breyer has often reminded us they are typicallybetter situatedthanjudges to make these
2
See Ronald Dworkin, A Matterof Principle 2-3 (Harvard 1985). See also Justice
Breyer'scolloquywith Dworkin,in RobertBadinterand StephenBreyer,eds,Judgesin ContemporaryDemocracy:AnInternationalConversation85 (NYU 2004):
Ronnie says that judges enforce their convictionsof "politicalmorality."... [T]he basic
questiona judgeasksis "Whatis fair?"... [O]ne,highlyabstract,generalquestionthat I ask
about the properresultin a case [is,]"Does this interpretationmake sense?"where"sense"
has a speciallegalconnotationrelatedto the basicpurposeof the provisionin question.
3 See, for example,Kersch,SyntheticProgressivismat 244 (cited in note 1); WalterE.
Joyce, The Early Constitutional
Jurisprudence
of JusticeStephenG. Breyer:A Studyof the Justice'sFirstYearon the UnitedStatesSupremeCourt,7 Seton Hall ConstL J 149, 163 (1996) (describingBreyer's"moderation,technicalskill, and measuredanalysis"and "carefuland pragmatic approachto constitutionalinterpretation");
Mark Silversteinand WilliamHaltom, You
Can'tAlwaysGet WhatYouWant:Reflectionson the Ginsburgand BreyerNominations,12 J L &
Polit 459, 461 (1996) (describingBreyeras "a techno-judgeof substantiallegal skillsbut utterly
wantingin the politicaland real-lifeexperiences[PresidentClinton]sought").ConsiderJeffreyS.
Lubbers,JusticeStephenBreyer:Purveyorof CommonSensein ManyForums,8 Admin L J Am
U 775, 776 (1995) (notingBreyer's"willingnessand abilityto serve as a common-sensegovernment reformer"in forumsoutsideof the Court);RichardJ.Pierce,Jr.,JusticeBreyer:Intentionalist,Pragmatist,and Empiricist,8 AdminL J Am U 747,747 (1995).
4 See Kersch,SyntheticProgressivismat 248-49 (cited in note 1) ("Thefirstimperativeof
[Breyer's]syntheticprogressivismis thatthe judge shouldserve as a helpmeetin the formulation
of wise policy.").
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assessments."For this reason,Justice Breyer counts himself a believer
in judicialrestraint.
An admirer of European technocracy,Justice Breyer has been
one of the most prominentadvocates for a "comparativist"approach
to legal questions,'whereby lawyers and judges talk across borders
and look around the world for approaches and solutions to shared
policy problems.Unlike many who look abroadprimarilyto discerna
moral consensus (such as, for example, on the death penalty), Justice
Breyer's comparativismis primarilyan outgrowthof his empiricism.
He argues that American judges should look to the ways in which
their counterpartsin other countries have decided cases because, in
doing so, they will find a wealth of informationthat will "cast an empirical light" on many of the same purposive policy questions that
commonlycome before Americancourts.9
5 See id at 249 ("Wisepolicymakingis [to Breyer]first and foremosta matter of ... an
empiricaljudgmentof the kind that a legislatureis more likely than a court to make with accuracy.")(internalquotationmarksomitted).See also UnitedStatesv Lopez, 514 US 549, 616-17
(1995) (Breyerdissenting)("Courtsmustgive Congressa degreeof leeway.").
6 LindaGreenhouse,The CompetingVisionsof the Role of the Court,NY Times C3 (July
7, 2002). See also Pierce,8 AdminL J Am U at 753-54 (cited in note 3) (describingCourtcases
reversingagencyinterpretationsof statutesas "starklyinconsistentwith JusticeBreyer'sdedication to intentionalism,pragmatism,and empiricism").Some have allegedthat JusticeBreyerhas
been the RehnquistCourtjusticeleast likely to void a federalstatuteon constitutionalgrounds.
See PaulGewirtzand ChadGolder,So WhoAre theActivists?,NY TimesA19 (July6, 2005):
We found that justicesvary widely in their inclinationto strike down Congressionallaws.
JusticeClarenceThomas,appointedby PresidentGeorgeH.W.Bush,was the most inclined,
voting to invalidate65.63 percent of those laws; Justice Stephen Breyer, appointed by
PresidentBill Clinton,was the least,votingto invalidate28.13percent.
A studyby politicalscientistChristopherZorn,however,places Breyernear the Rehnquist
Court'scenter in this regard.He was more likely to void a federal statute on constitutional
grounds,statisticallyspeaking,thanwere JusticesRehnquistand O'Connor,but less likely to do
so thanJusticesThomas,Scalia,Kennedy,Ginsburg,and Stevens.He was approximatelyas likely
to invalidatefederal statutesas was JusticeSouter.ChristopherZorn, LiberalJustices,Judicial
Activism,and FederalJudicialReview:An EmpiricalPerspective9 (presentedat the LibertyFund
Conferenceon Law,Liberty,andJudicialReview,June9-12, 2005).
7 I borrowthe termJusticeBreyeruses to describehimselfin this regard.StephenBreyer,
KeynoteAddress,97 Am SocietyIntl L Proc 265, 266 (2003) ("I believe the 'comparativist'view
that severalof us have enunciatedwill carrythe day.").
8 Thisis not the case for all the Court'sjusticesinterestedin this trend,and not exclusively
the case for JusticeBreyer.See Ken I. Kersch,The SupremeCourtand InternationalRelations
Theory,Albany L Rev (forthcoming2006).There,I argue that many of the justices,including
JusticeBreyer,have also been influencedby a broader,"diplomatic,"
foreignpolicyvision.Id at
2-4 (criticizingthis vision as undertheorizedand as a concessionto popularliberalconceptions
the Globalized
of internationallaw). See also Ken I. Kersch,The New Legal Transnationalism,
Judiciary,and the Rule of Law, 4 Wash U Global Stud L Rev 345, 354-55 (2005) ("[A]t least
some of the Court'sjustices ... increasinglysee themselves as ambassadorsdoing their part,
throughjudicialglobalization,to improvethe reputationof the United Statesabroad.").
9 Printz v United States,521 US 898, 977 (1997) (Breyer dissenting)(using Madison's
examinationof Europeanpoliticalexperiencein TheFederalist,numbers42 and 43, to arguefor
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With the publicationof Active Liberty:InterpretingOur Democratic Constitution,Justice Breyer has now moved to undergird his
longstandingjurisprudentialvision with a foray into democratictheory.'o Formerly,Breyer, the scholar of statutes, administration,and
regulation,was more or less content to take up a succession of relatively narrow questions that involved discerningthe purpose of particular statutes and constitutional provisions and principles, each
viewed more or less in isolation from the other."In Active Liberty,he
now argues confidentlythat the Constitutionhas a centralpurposethe promotion of "active liberty"or "the right of individualsto participate in democratic self-government"(p 21). While the Constitution's "democraticobjective"in many cases counselsjudicialrestraint,
he argues,it also should serve as a "sourceof judicialauthorityand an
interpretive aid to more effective protection of [both individualand
community]liberty"(p 6). He contends that it is importantfor a judge
to see his or her interpretivetask as involving"a quest for ... workable democraticgovernmentprotective of individualpersonal liberty"
(p 34). As his use of the word "quest"suggests,this process is perpetual and provisional,always open to appropriateexperimentationand
the considerationof new empiricalevidence.To the judge befalls the
especially importanttask of keeping the conduits of evidence open,
and the lines of discussionfree.1
Active Libertyis a short book, writtenfor (serious) general readin
ers, which Breyer sets out, explains, and seeks to justify his approach to constitutional(and statutory)interpretation.JusticeBreyer
understandshimself to have a modest conception of a judge's role.
Consistently,he claimsonly modest ambitionsfor this book. "I am not
arguing for a new theory of constitutionallaw,"he explains (p 110).
"My argument[does] not rest[] upon logical or scientificallyconvincan analogouscontemporaryendeavorby the Court).ConsiderStephenBreyer,On the Uses of
Statutes,65 S Cal L Rev 845,868 (1992)("[U]nlikeour country,
LegislativeHistoryin Interpreting
[foreign countries]have developed other institutions[such as the use of expert draftersand
administrativejudges who review proposedlegislation]to bring about and maintainnecessary
interpretiveconsistencyandcoherence.").
10 This process,culminatingin 2005'sActive Liberty,was launchedin Breyer'sMadison
Lectureat New YorkUniversitySchool of Law School.See generallyStephenBreyer,Our DemocraticConstitution,
77 NYU L Rev 245 (2002).
11 See Breyer,65 S Cal L Rev at 845-46 (cited in note 9); StephenBreyer,JudicialReview
of Questionsof Law and Policy,38 Admin L Rev 363,364-65 (1986) (advocatingjudicialreview
of agencyregulationsbased on a "global,comprehensiveview of an agency'sobjectivesand its
work")(emphasisadded).
12 Here, JusticeBreyer echoes a theme that has been at the center of the constitutional
scholarof risk and regulation,Cass Sunstein.See Cass
philosophyof anotherHarvard-educated
R. Sunstein,One Caseat a Time:JudicialMinimalismon the SupremeCourt259 (Harvard1999)
("Minimalismalso maintainsflexibilityfor the future,an especiallylarge virtuewhen facts and
valuesare in flux.").
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ing empiricaldemonstration"(id). It does not "presenta general theory of constitutionalinterpretation"(p 7). Rather,Active Liberty"illustrate[s] a theme" (id). Indeed, Breyer, as we have been told by
scholarsof the Court no less than by the Justicehimself,does not believe that such general theories are useful (pp 19, 110-11). As such,
this book touts its humility,not simply as a matter of JusticeBreyer's
temperament,but also as a matterof his substantiveconvictions."
Althoughit may not be fully argued,or defendedby "logicalor scientificallyconvincingempiricaldemonstration,"Active Libertyloudly
trumpetsa theory of interpretation(p 110).Thattheoryconsists of two
propositions.First, a judge should interpret a law in light of both its
purposes (or objectives) and the consequences of that judge's interpretationfor the achievementof those purposes.Second, an approach
that accords due regard to the purposes and consequences of interpretingparticularstatutoryand constitutionalprovisionswill advance
the overarchingpurpose of the Constitutionas a whole, which is to
promote "the people's will," or "democracy,"or "active liberty" (pp
115-16). Breyer illustratesthe usefulness of this "approach,perspective, and emphasis"by providingreaders with short discussions,in a
seeminglycommonsensicalspirit,of how a focus on purposes,and the
consequences of particular interpretations for the likelihood of
achieving those purposes,can helpfully inform the way that judges
approachstatutoryand constitutionalquestionsinvolving"contemporaryproblems"of free speech, federalism(or, as he has called it, "the
'federalist'problem"),14privacy,affirmativeaction, statutoryinterpretation, and administrativelaw (pp 7, 11). Breyer bookends these "applications"chapters with short, elegantly written chapters on democratic theory and American constitutionalhistory,grounding his approach at the book's beginningand anticipatingand meeting possible
objectionsto it at its end.
JusticeBreyer'sprotestationsto modesty notwithstanding,Active
Liberty will be taken by many as presenting a novel and refreshing
interpretiveposture, on a Court starved for intellectually ambitious
13 Sunsteinhas defined "judicialminimalism"as an approachto judging that promotes
"democraticdeliberation"by avoidingabstractionsand,while acceptingagreedupon core principles in makingdecisions,hews closely to the relevantfacts of unique,individualcases to issue
provisionaldecisions that are subjectto later refinement,clarification,and revision.Id at 4-5
decisionmakingrules in constitutionallaw that keep rulingsnarrowand
(listing"time-honored"
fact specific).See also JeffreyRosen, TwoCheersfor the RehnquistCourt,1 Nexus J Op 37, 39
(1996)(describingBreyeras "cautious,incremental,pragmatic,respectfulof historicalarguments,
andsuspiciousof sweepingclaimsaboutfundamentalvalues").
14 StephenBreyer,KeynoteAddress,Symposiumon Democracyand the Rule of Law in a
ChangingWorldOrder,New YorkUniversitySchool of Law (Mar9, 2000) (notingthat physical
distancefromfederaldecisionmakerstendsto alienateindividualcitizens).
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jurisprudentialliberals.Active Libertywill also be taken by many as a
brief for judicial restraintand humilityin an era of highly aggressive
(and, to many,frightening)conservativejudicial activism."Although
there are grounds for either type of reception, neither perspective,
viewed more broadly,capturesthe truth.
I. PURPOSES,CONSEQUENCES,AND LIBERTY
Justice Breyer begins his argument in Active Liberty by noting
the genuine difficultyof the questionsof how to interpreta legal text,
particularlyas that text is applied in the sorts of close cases that comprise the most prominentpart of the Supreme Court'sdocket (pp 7,
9). And he notes that, in approachingthis task, all judges,himself included, are pluralists--that is, they are eclectic.All "use similarbasic
tools to help them accomplishthe task"(p 7):
They read the text's language along with related language in
other parts of the document.They take account of its history,including history that shows what the language likely meant to
those who wrote it. They look to tradition indicating how the
relevant language was, and is, used in the law. They examine
precedents interpretingthe phrase, holding or suggesting what
the phrasemeans and how it has been applied.They try to understand the phrase'spurposesor (in respect to many constitutional
phrases)the values that it embodies,and they considerthe likely
consequences of the interpretivealternatives,valued in terms of
the phrase's purposes (pp 7-8).16
The differencesbetween judges in makingrecourseto these materials,
he contends,is a matter of emphasis,both within a particularcase or
context and more generally.Breyer argues,however,that these differences in emphasismatter(pp 8-9).
"My own view,"he writes,explainingthe originsof his own general emphases in interpretinga legal text, stems from "see[ing] the
[Constitution]as creatinga coherent frameworkfor a certain kind of
government"(p 8):
Described generally, that government is democratic;it avoids
concentrationof too much power in too few hands;it protects
15 See, for example,ThomasM. Keck, TheMostActivistSupremeCourtin History2 (Chicago 2004) ("[T]he [Rehnquist]Court has developed a distinctivenew style of conservative
judicialactivism.").
16 It is notable that the Court'snew chief justice,John Roberts,describedthe judge'srole
in similarlypluralisticterms duringhis confirmationhearings.See Craig Green, O'Connor's
Opposite,27 Natl L J 23,23 (Aug22,2005).
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personal liberty; it insists that the law respect each individual
equally; and it acts only upon the basis of law itself. The document embodies these general objectives in discrete provisions
(pp 8-9).
In approachingconstitutionalcases,as JusticeBreyer sees it, he is
called upon to assess the implicationsof his understandingof the relationship between the Constitution's"other general objectives" and
this overarching"democraticobjective"(p 9). He acknowledgesthat
in difficult cases, differentjustices will assess the implicationsof this
relationshipin differentways (pp 9-11).
These differencesare evident not only by looking at the spectrum
of emphases found among the justices of the currentSupremeCourt,
but also if one surveysthe nation'spast.JusticeBreyer is somethingof
an historicist.Rather than seeking to advancea timeless argumentfor
an appropriatejudicialposture,Breyer the pluralistacknowledgesthat
"membersof historicallydifferent Supreme Courts have emphasized
different constitutionalthemes, objectives,or approachesover time"
(p 9). In the early nineteenth century,the Court "helped to establish
the authorityof the federal government,includingthe federal judiciary" (p 10). In the late nineteenth and early twentieth centuries,the
Court "overlyemphasized... the protection of private property"and
"wrongly underemphasizedthe basic objectives of the Civil War
amendments"(id). The New Deal and the WarrenCourts"emphasized
ways in which the Constitutionprotected the citizen's 'active liberty,'
i.e., the scope of the right to participatein [democratic]government"
(id).."
As his decision to characterizeboth the New Deal and Warren
Courtsas centrallycommittedto democracyand "activeliberty"makes
clear,JusticeBreyer identifieshis own constitutionalagenda with that
of these earlier courts,and positions himself,in significantrespects,as
a partisan of midcentury constitutional liberalism (p 11). And he
commits himself to carryingthis agenda forwardinto the future (pp
11-12). At the point in historyin which he sits on the SupremeCourt,
while it is importantto give due weight to "language,history,and tradition," he argues here, it is especially important to emphasize the
consequencesof particularinterpretationson the advancementof "active liberty"-the "Constitution'sdemocraticobjective"(p 12).
Justice Breyer argues that an approach mindful of the consequences of a particularlegal interpretationfor the achievementof the
17 For similarviews on the Lochner,New Deal, andWarrenCourts,see Akhil Reed Amar,
America'sConstitution:ABiography475 (RandomHouse 2005);MortonJ.Horwitz,TheWarren
Courtand thePursuitof Justice3-4, 76-78 (Hill andWang1998).
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Constitution'sdemocraticobjective falls squarelywithin "an interpretive tradition"that values not simplycollective rights,but also the collective duties of the people (p 17). Such an interpretivetraditionvalues "callsfor judicial restraint"in the face of decisionsmade by a majority of the people, often throughthe voice of their elected representatives (id). The authorityof these representatives"mustbe broad"(p
15). Deference to them is due not just when a judge determines for
himself that, as a matter of public policy, they have decided rightly.
"Thepeople must have room to decide and leeway to make mistakes,"
he writes (p 15).'8
This interpretive tradition,he tells us, "sees texts as driven by
purposes"(p 17). "[T]hejudge, whether applyingstatute or Constitution, should 'reconstructthe past solution imaginativelyin its setting
and project the purposes which inspired it upon the concrete occasions which arise for their decision"'(p 18).19And to realize these purposes in the real world,a judge must be attentive to the consequences
likely to flow from his interpretation.This requiresa judge to read and
map that world, taking full account of "contemporaryconditions,social, industrial,and political, of the communityto be affected" (id).20
According to Breyer,"nothingthat is logically relevant should be excluded"(id).21
Justice Breyer recognizesthat the interpretivetraditionhe seeks
to advance in Active Liberty"does not expect highly general instructions themselves to determinethe outcome of difficultconcrete cases
where language is open-ended and precisely defined purpose is difficult to ascertain" (id). Key constitutional provisions like the Due
Process and Equal Protection clauses reflect "aspirations,"and were
not designed to be rules of action (id).22When faced with these provi18 See also New StateIce Co v Liebmann,285 US 262, 286-300
(1932) (Brandeisdissenting). For Justice Breyer'sviews on Justice Brandeisas a like-mindedempiricist,see Stephen
Breyer,JusticeBrandeisas LegalSeer,BrandeisLectureat the Universityof LouisvilleSchoolof
Law (Feb 16, 2004), online at http://www.supremecourtus.gov/publicinfo/speeches/sp_02-1604.html(visitedApr 4, 2006) ("[Brandeis]was rightthat we mustcontinueto use facts and consequencesto distinguishpermissible,or better,from impermissibleor worse,interpretationsof
the Constitutionand of law.").
19 CitingLearnedHand, The Contributionof an IndependentJudiciaryto Civilization,in
IrvingDilliard,ed, TheSpiritof Liberty:PapersandAddressesof LearnedHand 155,157 (Knopf
3d ed 1960)(arguingagainsta plainlanguageapproachbecause"wordsare suchtemperamental
beingsthatthe surestway to lose theiressenceis to take themat theirface").
20 CitingLouisD. Brandeis,in SolomonGoldman,ed, TheWordsof JusticeBrandeis115(1953)
or arbitrary").
(usingsocialconsensusto assesswhethera policepowerstatuteis "unreasonable
21 CitingFelix Frankfurter,
Some Reflectionson the Readingof Statutes,47 ColumL Rev
527,541 (1947) ("Therigidityof the Englishcourtsin interpretinglanguagemerelyby readingit
disregardsthe fact thatenactmentsare ... organismswhichexist in theirenvironment.").
22 CitingFelix Frankfurter,
The SupremeCourtin the Mirrorof Justices,in PhilipB. Kurland,ed, Of Law and Life & OtherThingsThatMatter:PapersandAddressesof FelixFrankfurter,
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sions, judges must not act "willful[ly],in the sense of enforcing individual views" (id).23Quoting Louis Brandeis,he reminds judges that
"we must be ever on our guard,lest we erect our prejudicesinto legal
principles"(p 19).24At the same time,JusticeBreyer arguesthatjudges
should not rely uncriticallyand woodenly on legal formulasin an effort to steer clear of willfulness(id):25
The tradition answerswith an attitude,an attitude that hesitates
to rely upon any single theory or grandview of law,of interpretation, or of the Constitution.It championsthe need to search for
purposes;it calls for restraint.... And it finds in the democratic
nature of our system more than simply a justificationfor judicial
restraint(id).
A. Purposeand the Legal Process
In laying out his argumentthat legal texts are most appropriately
interpretedin light of their purposes and the likely consequences of
particularinterpretationsfor the achievementof those purposes,Justice Breyer forswearsany ambitionsto originality.He is right to do so.
For with the publicationof Active Libertyreaders are presented with
the legal process templatefor the interpretationof legal texts- a template that first rose to prominencein the heydayof managerialliberalism in the 1950s-in what surely must be the purest, most undiluted
form ever proffered by a sitting Justice of the Supreme Court.The
central argumentof Active Liberty--that (as Breyer puts it) the law is
or ought to be goal-oriented,rational,and dynamic(pp 17-20), that it
ought to be understood purposively,with an animatingfocus on the
problems to be solved, with courts interpretingthe law situated, as
institutionswith their own distinctive competences,within a broader
frameworkof a "problemsolvinggovernment"-is all but lifted off the
pages of Henry Hart and Albert Sacks's landmarklaw school text-
1956-196377, 94 (Atheneum1969) (noting that "[t]he Courtwas of course from the beginning
the interpreterof the Constitution").
23 Citingid at 95 (arguingthatjudgesmust also not act "wooden[ly],in uncriticallyresting
on formulas").Justice Breyer's views, in this regard,are similar to Ronald Dworkin's.See
Dworkin,Matterof Principleat 17 (cited in note 2) (distinguishingjudgeswho decide cases "on
politicalgrounds"from those who eschew all externalconstraintson their decisionmakingprerogative).
24 QuotingNew StateIce, 285 US at 311 (Brandeisdissenting)(cautioningthat substantive
due processcan be a meansby whichprejudiceis embodiedin law).
25 Citingid ("[Adjudication]demandsthe habit of curbingany tendencyto reach results
agreeableto desireor to embracethe solutionof a problembefore exhaustingits comprehensive
analysis.").
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book, TheLegal Process,whichJusticeBreyerstudiedas a law student
at HarvardLaw School in the early 1960s.26
To gain a deeper appreciationfor Breyer's self-described"interpretive tradition"or "attitude,"we can put Active Libertyto the side
for the time being and go back to the legal process template itself.
"[K]nowledge,"HenryHart wrote in 1941,
consists, not in doctrine,not in propositionalstatements stored
away in the brain;but in the capacity to solve problems as they
are actuallypresented in life; the capacityto see all the implications ... of the action to be taken;the capacityto bringto bear in
the taking of decisions the maximumof the availableexperience
of mankind.2
The law, Hart explained, is instituted to solve problems by availing
itself of this practicalknowledge:
Law is a response to the problemswhich are intrinsicin the existence of a society.It is an effort to deal with the problems:to deal
with them in a way which at the least will preservethe minimum
benefits of group living and at best will increase the benefits to
the currently attainable maximum. Law, therefore, is dynamic
and not static. It is a doing of something,an activitywith a pur26 See WilliamN. Eskridge,Jr.,andPhilipP.Frickey,An Historicaland CriticalIntroduction
to The Legal Process,in HenryM. Hart,Jr.,andAlbert M. Sacks,TheLegalProcess:BasicProblems in the MakingandApplicationof Law li, c-cii (Foundation1994) (notingthat adherentsof
legal processtheorysoughtto pair this "dynamic"governmentwith "neutral"or "lawlike"principles).JusticeBreyerdoes not mention TheLegal Processin ActiveLiberty.He does,however,
mentionWilliamN. Eskridge,Jr.,PhilipP.Frickey,and ElizabethGarrett'sCasesand Materials
on Legislation:Statutesand the Creationof Public Policy (West3d ed 2001), a casebook that is
heavily influencedby legal process approachesand that discussesextensivelythe nature and
history of legal process thinking.See id at 565-67 (describingthe evolution of "the rationalist
traditionin Americanlaw").See generallyid at ch 7, ? 2 (presentingcases and secondarysources
that address legal process theories of interpretation).This rejectionof grand theorizingand
foundationalthinkinghas a certainaffinitywith pragmatism,a majorinfluenceon early twentieth centuryprogressives.JusticeBreyer studiedpragmatismsystematically,both as an (undergraduate)philosophymajorat Stanfordand at the HarvardLaw School.Kersch,SyntheticProgressivismat 245 (cited in note 1) ("JusticeBreyercame by his pragmatismin the first instance
As Breyerinteracts
less as a by-productof la vie activethanas a matterof seriousmetaphysics.").
in the comingyears with JusticesRoberts and Alito, it will be of interestto see how their own
rejectionof grandtheorizingand foundationalthinking,whichseems to be rooted in a commitment to common law legal craftsmanshipand legal professionalism,is differentfrom Justice
Breyer's,which is rooted in philosophicalpragmatismand a backgroundin administrativelaw
and regulatorypolicy.I returnto this theme,briefly,at the end of this Review.See text accompanyingnotes 218-19.
27 Letter from HenryM. Hart,Jr.,to John H. Williams(Oct 15, 1941),quoted in Eskridge
and Frickey,An Historicaland CriticalIntroductionat lxxvi (cited in note 26) (describingHart's
commitmentto addressingstatutoryinterpretationthrough"realistic'problems'at a given point
in time").
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pose. Reflecting on this purposivequality,we come to see that it
infuses the whole of law and all its parts.We come to see that
every legal problemis a problemof purpose,of means to an end,
and needs to be approachedwith awarenessthat this is so.28
As Hart and Sacksput it in their textbook'schapter,"An Introduction
to the Nature and Functionof Law":
Law is a doing of something,a purposive activity,a continuous
striving to solve the basic problems of social living .... Legal ar-
rangements(laws) are provisionsfor the future in aid of this effort. Sane people do not make provisionsfor the futurewhich are
purposeless.It can be accepted as a fixed premise,therefore,that
every statute and every doctrine of unwrittenlaw developed by
the decisional process has some kind of purpose or objective,
however difficultit may be on occasion to ascertainit or to agree
exactlyhow it should be phrased.
Underlyingevery rule and standard,in other words,is at the least
a policy and in most cases a principle.This principleor policy is
always available to guide judgment in resolving uncertainties
about the arrangement'smeaning.The uncertaintiescannot be
intelligentlyresolved-indeed, in a just case they cannot be intelligibly resolved--without reference to it. If the policy is in doubt
in relevant respects,that doubt must be cleared up. Always the
question must be faced:What purpose--what policy or objective
or underlyingprinciple--shouldbe attributedto the arrangement
in question?The immediateuncertaintyabout the arrangement's
meaningmust then be resolved not only so as to avoid irrational
inconsistenciesin applicationbut so as to furtherthe purpose so
attributed.29
Hart and Sacks add (and JusticeBreyer agrees-prominently -in Active Liberty) that:
28 HenryM. Hart,Jr.,Note on Some Essentialsof a WorkingTheoryof Law, Hart Papers,
Box 18,Folder3, quotedin EskridgeandFrickey,An Historicaland CriticalIntroductionat lxxxii
(cited in note 26) (notingthat Hart "posited[that]perhapsthe crucialfact about any society is
the interdependenceof its members")(internalquotationmarksomitted).See ThomasL. Haskell, TheEmergenceof ProfessionalSocialScience:TheAmericanSocialScienceAssociationand
Crisisof Authority15 (Illinois 1977) (describing"a major intellectual
the Nineteenth-Century
reorientation"at the end of the nineteenthcenturybroughtabout by social scientists'recognition of "the objectivefact of social interdependence").See also MichaelWillrich,Cityof Courts:
SocializingJusticein ProgressiveEra Chicago84-85 (Cambridge2003) (describingthe Progressive Era shift from individualrights to communityrights,especially in the realm of criminal
responsibility).
29 Hartand Sacks,TheLegalProcessat 148 (citedin note 26).
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Not only does every particularlegal arrangementhave its own
particularpurpose but that purpose is always a subordinateone
in aid of the more general and thus more nearly ultimate purposes of the law.Doubts about the purposesof particularstatutes
or decisionaldoctrines,it would seem to follow,must be resolved,
if possible,so as to harmonizethem with more general principles
and policies.The organizingand rationalizingpower of this idea
is inestimable.:o
B. Democracyand the Legal Process
This purposive approach,which looks towardsgovernmentoptimisticallyas a problemsolvingendeavor,was forged in the wake of the
New Deal triumph(but before the WarrenEra rightsrevolution).31For
many liberals at this time, the democraticbona fides of the New Deal
triumphwere so self-evident that there was no felt need to elaborate
any serious democratic theory on which to ground the purposive,
problem-focusedapproach:the problemsolversservingin the national
government in Washingtonwere experts in the science of advancing
the public interestwho acted,few doubted,with only the people's best
interestsat heart.3
The judicialactivismof the WarrenEra (the implicationsof which
were not foreseen by Hart and Sacks when they wrote their text33),
changed all that. The fact that Hart and Sacks "had an insufficiently
elaborated theory of democracy,"had hardly been noticed before.34
Once the rights revolution took off, however, it suddenly became a
"problem"that legal academicsneeded to solve. In subsequentyears,
a successor generation of "new legal process"thinkerssupplemented
Hart and Sacks'spurposive approachwith argumentsthat it was the
most consistentwith "democracy."35
The majorroute by which they did
so was to conceive of "lawmakingas a dialectic and evolutive process.'36 New legal process scholarsemphasized"the importanceof dia30 Id.
31 See Lucas A. Powe, Jr., The WarrenCourtand AmericanPolitics 17 (Belknap 2000)
("[T]heCourt'sprimerole was to facilitatethe policiesordainedby the electedbranches.").
32 See id at 17-18.
33 See EskridgeandFrickey,
An HistoricalandCriticalIntroduction
atxcviii(citedin note26).
34 Id at cxix-cxx (noting argumentsthat legislativeintent and popularwill did not match
up becauseof suppressionof the minorityandmanipulationof the majority).
35 Id at cxxx-cxxxi(reconceivinglegal processtheoryto minimizethe impactof undemocratic statutes,for example, those that reflect rent-seekingby special interests);William N.
Eskridge,Jr.,and PhilipP.Frickey,Casesand Materialson Legislation:Statutesand the Creation
of PublicPolicy333 (West1st ed 1988)("Thenew legalprocessthinkersjustifyan activerole for
judgesand administrators
by rethinkingthe conceptof lawmakingin a democraticpolity.").
36 EskridgeandFrickey,Casesand Materialson Legislationat 333 (citedin note 35).
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logue or conversation as the means by which innovative lawmaking
can be validated in a democraticpolity and by which the rule of law
can best be defended against charges of unfairnessor illegitimacy."
For these scholars,"[1]awmaking
is a continuousprocess of discussion,
the
enactment
and interpretationof statutes
punctuated perhaps by
but mainly animated by an ongoing dialogue of interested and informed observers.""Judges are only one of many participantsin this
process.As such, it is incumbentupon them to work with the other
institutionsof governmentas partnersin the ongoing (and, by its nature,experimental)process of solving social problemsand implementing public policy effectively. The judge's role should be modestdeferentialto the legislative and bureaucraticexpertise where appropriate, but assertive in areas in which judges possess unique institutional competence (such as, for example, cases involving the protection of civil rightsand civil liberties).If judges fulfilled this role properly,so the new legal process thinkersheld, judges would also be acting as the helpmeets of democracyeven if they voted in a countermajoritarianway.39
Active Liberty, in classic new legal process fashion, marries a
broaderdemocratictheory to an articulationof Hart and Sacks'spurposive and consequentialistapproachto statutory interpretation.In
doing so, however, Justice Breyer has decided to rest more prominently than most of the other new legal process scholarson the original purposive approachto statutory constructionas set out by Hart
and Sacks themselves."In this book, JusticeBreyer stipulatesthat that
or "activeliberty"(see pp 98-99).
more generalpurposeis "democracy"
Breyer argueshis way to this conclusionthrougha series of steps.
The book begins with the affirmationthat "[t]he United States is a
nation built upon principlesof liberty"(p 3).41 But he then explains
37 Id at 331 (describingthree commonthemesin the responsesof new legal processscholars to past criticismsof legal processtheory).
38 Id at 333 ("The
legitimacyof law derivesnot from its formalsource,but ratherfromits
capacityfor enlighteningus and advancingthe moralandeconomicdialecticof our society.").
39 See, for example,Sunstein,One Case at a Time at 4 (cited in note 12) ("[M]inimalist
rulingsincreasethe spacefor furtherreflectionand debate at the local,state,andnationallevels,
simplybecausethey do not foreclosesubsequentdecisions.").But see AlexanderM. Bickel,The
LeastDangerousBranch:The SupremeCourtat the Bar of Politics20-21 (Yale 1986) (elaborating the possibilitythat, if courts' decisions reach too broadly,courts may become "a countermajoritariancheck on the legislativeand the executive [that]ha[s] a tendencyover time seriously to weaken the democraticprocess");JohnHart Ely,Democracyand Distrust:A Theoryof
JudicialReview102-03 (Harvard1980) (advocatingthatjudgesinterveneonly when the political
by trammelingminorityrights).
process"issystemicallymalfunctioning"
40 See text accompanyingnote 30.
41 In his emphasison "liberty"ratherthan "equality"as a baseline,JusticeBreyerdeparts
from the approachof the new legal processscholarhe most resembles,Cass Sunstein.See Cass
R. Sunstein,The PartialConstitution141 (Harvard1993) (emphasizing,as keys to a functioning
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that "libertymeans not only freedom from governmentcoercion but
also the freedom to participatein the governmentitself"(id). As such,
this "publicliberty"has two dimensions.In describingand elaborating
upon these dimensions,Breyer returnsto a famous distinctionmade
by the nineteenthcenturyFrenchpoliticalphilosopherBenjaminConstant between the "liberty of the ancients"and the "liberty of the
moderns"(id).42
For Breyer,Constant'slibertyof the ancientsinvolved"a sharing
of a nation's sovereign authority among that nation's citizens,"and
"an active and constantparticipationin collective power"(p 4). (Constant'smodel here was the classicalGreek polis.43)Breyer writes:"This
sharing of sovereign authority,Constant said, 'enlarged'the citizens'
'minds,ennobled their thoughts,'and 'establishedamong them a kind
of intellectualequality which forms the glory and the power of a people"' (id). In Constant'sview, Breyer tells us-and these real virtues
notwithstanding- "ancient liberty was incomplete [because it] failed
to protect the individualcitizen from the tyrannyof the majority[and
it] provided a dismal pretext for those who advocated new 'kinds of
tyranny"'(id). (Constant'sthoughtshere were turnedboth to The Terror, which he had witnessed, and in which appeals to classical ideals
played a prominentpart,and to the Napoleonic dictatorship,in which
a tyranny was cemented through the withdrawalof significant segments of the people from public life.") Because of the threat of tyranny,it was essential to also recognizethe importanceof the "modern
liberty,""civil liberty,"or "freedom from government,consist[ing]of
the individual'sfreedom to pursue his own interests and desires free
state, politicalequalityand equal opportunityto develop individualcapacities);JamesE. FlemtheSubstantiveConstitution,
72 Tex L Rev 211,213-14 (1993)(notingSunstein's
ing, Constructing
concernswithequality).The decisionto emphasizelibertyratherthanequalityis probablybetter
attunedto the moreconservativeCourton whichJusticeBreyeris sitting,and on whichhe seeks
to have influence.Thisuse of "liberty"is most likelynot a matterof mere strategyalone.Justice
Breyer,afterall, was a law and economicsscholar(albeitin the generallystate-friendlyHarvard
incarnationratherthan the free-marketUniversityof Chicagoguise) and had the supportof
manyRepublicansfor his appointmentto the Court.
42 This distinctionwas first drawnin the early texts of Madamede Stadl,who exerted a
stronginfluenceon Constant.StephenHolmes,BenjaminConstantand the Makingof Modern
Liberalism38 (Yale 1984) (notingthat Constantand de Stadlelaboratedthe distinctionin their
1798 work CirconstancesActuelles).It is well known among political theorists,and has been
advertedto by law professorsin an arrayof contextsover the years.Breyer'sadoptionof Constant'sdistinctionhere is remarkableless for its originalitythanfor the centralityhe accordsit in
advancinga theoryregardingthe appropriateway to interpretlegal texts.See id at 19 (describing
Constant'sdistinctionas applicableto the politicalprocessbut not to judicialreview).
43 See id at 19 ("[Popularself-government]was most fully actualizedin the ancientpolis,
while [private independence]was the aspirationof all those inhabitingmodern, large-scale
commercialsocieties.").
44 See id at 26 (describingboth Robespierreand Napoleonas "politicalhypocri[tes]""who
decoratedcrueltywith democraticsymbols").
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of impropergovernmentinterference"(p 5). The safeguardingof each
form of liberty was necessary,but not sufficient (id). Breyer informs
his readers-rightly-that Constant argued for the simultaneousimportanceof both kinds of libertyin the modernworld,and that,to live
well politically,we must"learnto combinethe two together"(id).
Breyer calls Constant'sliberty of the ancients "activeliberty"(p
And
4).
Breyer, in turn, identifies active liberty with the "democratic
nature"of government(p 5). He fastens the last link in this chain by
arguing-dubiously, but not in any way denyingthe importanceof the
liberty of the moderns-that the liberty of the ancients,or active liberty,is, and alwayswas,centralto the meaningof the Constitution,and
represents its overarching"objective"(p 6). And, again, while never
denyingthe significanceof negative liberty,he tells us that his primary
focus here will be on active liberty,that is, on "the Constitution'sdemocraticnature"(p 5).
This, of course, is not simply a matter of political theory.It has
implicationsfor the way JusticeBreyer and, presumably,other judges
(who mightbe persuaded)interpretlaw."Mythesis,"Breyerwrites,"is
that courts should take greater account of the Constitution'sdemocratic nature when they interpretconstitutionaland statutorytexts" (p
5). A due attentivenessto "the Constitution'sdemocraticnature,"he
tells us expressly,counsels a postureof judicialrestraint(pp 5, 17). But
the nature of the Constitutiondoes more than that: "It finds in the
Constitution'sdemocratic objective not simply restraint on judicial
power or an ancient counterpartof more modern protection,but also
a source of judicialauthorityand an interpretiveaid to more effective
protection of ancient and modern liberty alike"(p 6). "[E]mphasizing
this democraticobjective,"he contends,"canbringus closer to achieving the properbalanceto which Constantreferred"(id).
C. Historyand the Legal Process
The purposiveapproachas originallyforged in the New Deal Era
by Hart and Sacks,which looked towards government optimistically
as a problemsolvingendeavor,was not only initiallyoffhand about its
theory of democracy(the solving of nationalproblemsby the national
governmentwas assumedto be self-evidentlydemocratic).It was also
initiallyoffhand about both the constitutionaltext itself and the text's
roots in America'spolitical and constitutionalhistory (which,in many
respects,advocates of the purposiveapproachfelt did not much matter in the modern era)."Hart and Sacks's"purposive"understanding
45 Thisoffhandednessmay have stemmed,in part,fromthe stronginfluenceof the progressive historiesof the FoundingduringHartand Sacks'sintellectuallyformativeyears,in whichthe
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of the nature of law,and the judge's role in interpretingit was derived
with statutes and the problem of interpretingthem in mind, and not
the Constitution.46As New Deal veterans grappledwith the problems
and promise of the modern administrativestate they had helped to
create, the main constitutionalquestions seemed to be behind them.47
As they saw it, they now lived in a pragmaticage, in which the central
questions for governmentwere practicalquestions of "what works?"
(they essentiallydrew an equivalencebetween what worked and what
was constitutional).In the nearly fourteen hundredpages of The Legal Process, the Constitution-and the Founders-are mentioned
rarely,and only in passing.4
That being the case, it is notable that The Legal Process opens
with a specific mention of the constitutionalmoment in 1789.But the
use Hart and Sacksmake of the Foundingis telling:
In 1789 when the American republic was established some 800
million people inhabitedthe globe. Today,there are about 2,500
millions and the numberis steadily increasing.These human beings have a greatvarietyof wants,rangingfrom the commonurge
to secure the simple necessities of physicalexistence to the most
subtle of desires to achieve some sense of oneness with the universe. The more basic wants are clearly apprehendedand relaFoundingitself (and the originalConstitution)was condemnedas, in many respects,undemocratic.See CharlesA. Beard,An EconomicInterpretation
of the Constitutionof the UnitedStates
154 (Macmillan1944) (implyingthat the Constitutionwas supportedby "the ownersof personalty anxiousto find a foil againstthe attacksof levelingdemocracy").
46 See Eskridgeand Frickey,An Historicaland CriticalIntroductionat cvi-cvii (cited in
note 26) (noting that civil rights cases and other constitutionalmaterialsfailed to enter The
Legal Processin the 1950s).For a classic articulationof the "purposive"approachto statutory
interpretationas expoundedby a legal processscholar,see generallyReed Dickerson,TheInterpretationand Applicationof Statutes87-88 (Little,Brown 1975) (looking to the "ulteriorpurpose"of statutesas "thetouchstoneof statutoryinterpretation").
47 The key battle,of course,was the New Deal constitutionalstandoffin which Roosevelt
threatenedto packan uncooperativeCourtwith new justiceswho favoredNew Deal legislation.
See WilliamLeuchtenburg,The SupremeCourt Reborn 132-34 (Oxford 1995) ("[Roosevelt]
recommendedthatwhen a federaljudge who had servedat least ten yearswaitedmore thansix
monthsafterhis seventiethbirthdayto resignor retire,a Presidentmightadd a new judge to the
bench.").See also NLRB v Jones & LaughlinSteel Corp,301 US 1, 37 (1937) (expandingthe
federal government'spower under the CommerceClause to includeall activitieswith "sucha
close andsubstantialrelationto interstatecommercethattheircontrolis essentialor appropriate
to protectthat commercefrom burdensand obstructions");WestCoastHotel Co v Parrish,300
US 379,400 (1937) (upholdingstate regulationof the numberof hourswomen could workoutside of the home). Hart servedin the Roosevelt administrationas AssociateGeneralCounselof
the Office of Price Administration(OPA). WilliamN. Eskridge,Jr., and Philip P. Frickey,The
Makingof The Legal Process,107 HarvL Rev 2031,2036 (1994) (notingthat"[t]heOPA experience filled Hartwith a new enthusiasmfor teachinglegislation").
48 So far as I can tell, a constitutionalFrameris mentionedonly once:JamesMadisonis
referencedbrieflyin the discussionof federalism,the book's only sustained(albeit brief) foray
into a constitutionalsubject.Hartand Sacks,TheLegalProcessat 168 (cited in note 26).
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tively fixed. Others often are only dimly felt, and are subject to
change by many complex processes both of external suggestion
and of internal reflection.But whatever for the time being each
individual'swants may be, human life is an unceasingprocess of
fixing upon those on which time and effort are to be expended,
and tryingto satisfythem....
The coexistence on the face of the same planet of these everchanging and increasingmillions of people, having these wants
and such abilities to satisfy the wants under these conditions of
interdependence,are the basic facts of social science,and pose its
basic problems....
Among those who have succeeded in survivingfor the time being, whose wants,taken as they are at any given time, and which
of them, are to be satisfied,and how? To the extent that presently
existing wants are subject to change by external suggestion,
which wants are to be encouragedand which discouraged?These
are all questions which in some fashion or other must be answered-by events if not by consciouschoice.Law being a pervasive aspect of social science, the questions pose problems which
are basic also for lawyers.49
By the WarrenEra, however,when, among liberalsand conservatives alike, cries reached a crescendo that liberal activistjudges were
no longer interpretingthe Constitution,either as written or as intended by the Framers,but instead were simply writing into law the
judges' own policy preferences,it was no longer politically and intellectually plausible for judges and law professorsto dispense with either the Constitutionor with argumentsfrom history.It was at this
time that purposive and consequentialistnew legal process scholars
supplementedtheir newly forged democratictheories with a "republican" reading of American history-a reading that first appeared in
historicalliteraturein the middle of the 1960s•o-which in its own way
emphasizedthe same sort of classicalrepublicanismthat Constanthad
in mind when describingwhat he referredto as the liberty of the an49 Id at 1-2.
Thought,
50 See,for example,J.G.A.Pocock,CivicHumanismandItsRole inAnglo-American
in J.G.A.Pocock,Politics,Language,and Time:Essayson PoliticalThoughtand History80, 101
(Atheneum1971) ("Thereis in fact evidenceof a continuingattemptthroughoutthe eighteenth
centuryto explainhow the individualof an urbanand commercialsocietycouldbe a citizen,free,
BernardBailyn,TheIdeologicalOriginsof theAmericanRevovirtuous,andaboveall uncorrupt.");
states"formed
lution281 (Belknap1967)(positingthatat the time of the Revolution"[r]epublican
"a new socialbasis for the middlelevel of government").See also Akhil Reed Amar,The Bill of
302 (Yale 1998) (listing"historians[who]have exploredthe
Rights:Creationand Reconstruction
strongrepublicanstrandsof the Founding").
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cients. The law school civic republicans,who arrivedon the scene in
numbers in the 1980s,argued-as Breyer does in his book-that "the
historical evidence supports the view that the republicantraditionis
the dominant tradition and that public values should inform legisla"Is it reasonable from a
tion (and its implementation)at all levels.""51
historicalperspective,"he asks,"to view the Constitutionas centrally
focused upon active liberty,upon the rightsof individualsto participate
"I believe so,"he concludes(p 21).
in democraticself-government?"
The reading of history Justice Breyer advances here is nothing
new (though the degree to which the republicanstrainrepresentsthe
dominant one in American political thought is debatable52). The real
interest in Justice Breyer's historicaloverview lies at the end, where
he translatesthis civic republicanreadingof Americanhistoryinto his
own patented (and technocratic)legal process idiom. Justice Breyer
refers to the active liberty thrust of the Constitutionas its "primary
objective,"which is manifestedin three ways (p 33). First,"all citizens
share the government'sauthority... in the creation of public policy"
(id). Second,"theConstitution'sstructuralcomplexity"was a "respon[se]
to certainpracticalneeds,for delegation,for nondestructive(and hopefully sound) public polices,and for protectionof basic individualfreedoms" (id). Third,"the Constitution'sdemocraticimperative"should
be understood"as accommodating,even insistingupon, these practical
needs" (pp 33-34). "In sum,"he concludes,"ourconstitutionalhistory
had been a quest for workable democraticgovernment"(p 34). (This,
it is worth noting,is a somewhatidiosyncraticmove, because many of
51 Eskridgeand Frickey,Casesand Materialson Legislationat 331 (cited in note 35) (describingthese scholars'claims as a "powerfulanalyticattackon pluralism"and a rejectionof
interestgroupsas the principalgeneratorsof legislation).See, for example,Sunstein,ThePartial
Constitutionat 23-24 (cited in note 41) ("[T]heframers'belief in deliberativedemocracydrew
from traditionalrepublicanthought.");BruceA. Ackerman,TheStorrsLectures:Discoveringthe
Constitution,93 Yale L J 1013,1030-31 (1984) (using The Federalistto argue that the Framers
sought"a constitutionaleconomyof [republican]virtue").
52 See, for example,Michael P. Zuckert,NaturalRightsand the New Republicanismxix
(Princeton1994) ("Americawas not 'foundedin the dread of modernity,'as one of the civicrepublicanhistoriansputs it, but foundedin the embraceof modernity.");
JoyceAppleby,Liberalismand Republicanismin theHistoricalImagination338 (Harvard1992) ("[B]ypresentingthis
mode of politicaldiscourseas encapsulatingAmericanswithina closed ideology,the republican
revisionistshave gone beyond their evidence.");Isaac Kramnick,Republicanismand Bourgeois
Radicalism:Political Ideology in Late Eighteenth-Century
England and America 40 (Cornell
1990) ("Liberalismthere was in late eighteenth-centuryEngland and America alongside the
older ideal of republicanism,a progressiveliberalismstill subversiveof the status quo.");John
Patrick Diggins, The Lost Soul of AmericanPolitics:Virtue,Self-Interest,and Foundationsof
Liberalism20 (Basic 1984) (arguingthat the key thinkersin the Revolutionaryand Constitutionaleras did not employcivicrepublicanismin theirwritings).
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the republicantheorists themselves saw the Constitutionas, in many
respects,a betrayalof, or a retreatfrom,the republicantradition.")
II. ACTIVE LIBERTY AS RHETORICAND TOOL
To trace the originsof JusticeBreyer's"interpretivetradition,"of
his "attitude"in approachinga legal text, of course, is not the same
thing as to critiqueit. There are a numberof ways,though,that we can
critique Breyer's philosophy.First, we can ask if he uses Constant's
understandingof "activeliberty"appropriatelyin justifyinghis stated
interpretivestance.Second,we can see how JusticeBreyer'semphasis
on purposes and consequencesin the service of what he understands
to be active libertyinformshis reasoningand his decisions in concrete,
contemporarycases.If we do so, I think that we shall see that this Justice uses "active liberty"and appeals to democracyin a chiefly rhetoricalway,and that, in many respects,this permitshim to obscurethe
ways in which his "attitude"is perhaps the least "democratic"of any
of the SupremeCourt'scurrentlysittingjustices.
A. Active Libertyas Rhetoric
JusticeBreyer'sdecisionto invoke BenjaminConstantas a touchstone is understandable,both with respect to JusticeBreyer'sown approach to law and politics and more generally.Both Breyer and Constant endeavorto be clear-eyedabout the attractionsand dangersof a
belief in human progress,on the one hand, and conservatism,on the
other.Like JusticeBreyer,Constantbelievedthat a sensibleliberalpolitics is best conceivedof, not as a deductionfrom a first-factor a principle, but ratheras a sensiblemeans,given the ambientcontext,of solving
pressingpoliticalproblems.54
Breyer'sdecisionto invoke Constant'sunderstandingof the nature
and promiseof liberalfreedomin the modem worldis also understandable-and, in many respects,welcome--because, among modern liberals, Constantis clearlypossessed of a rare wisdom.Where others (particularlycontemporaryacademics)have derivedtheir understandingof
53 See GordonS.Wood, TheRadicalismof theAmericanRevolution253-54 (Knopf 1992)
(contendingthat the Framersused the Constitutionto grantpoliticalpower to an elite groupof
supposedlyvirtuousand"disinterestedgentry");GordonS.Wood,The Creationof theAmerican
Republic,1776-1787606 (North Carolina1969) ("[T]heAmericansof 1787 shatteredthe classical Whigworldof 1776.").
54 "Theliberalstate is desirablenot because it mirrorshumannatureor respectseternal
humanrights,but becauseit is the politicalarrangementmost adequateto solvingthe problems
of European society in its current stage of economic, scientific, and moral development."
Holmes, BenjaminConstantat 32 (cited in note 42) ("[Constant]deliberatelysupplantedthe
contractmythwitha theoryof socialchange.").
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libertyfrom almostgeometricproofs,restingon a cloud of abstractions
that would bring a twinkle to the eyes of Aristophanes,Constant
framedhis views as a profoundlyreflectiveparticipantin actualpolitics,
as a memberof the FrenchAssembly,and, indeed, (afterhavingpreviously criticizedhim ferociously)as part of a group that helped Napoleon draft France's1815 constitution."He was engaged in public life,
moreover,at a time when many of the most profoundpolitical questions,presentedin their deepest form,were on the table,and when the
consequencesof varioustheories and choices became readilyapparent
because these theories and choices were put swiftly into action in the
actual world.56 Constant'sreflectionson politics and libertywere additionally informedby a broad and deep readingof historyand political
theory,as well as by a profoundinterestin, and insightinto,humannature and individualpsychology."He was possessed of a well-rounded,
deeply humanisticunderstandingof politics.
That said, though,it is not at all clear of what real use Constant,
and his concepts of the "libertyof the moderns"and the "libertyof the
ancients"can be-other than as a rhetoricaljumping off point-to a
modern Americanjudge like JusticeBreyer,faced with concrete legal
cases aimed at "interpretingour democratic Constitution"(pp 5-6).
Unlike Alexis de Tocqueville,Constantnever visitedAmerica and was
not a lawyer.And Constantwas not a judge."Much of his writing,including his famous essay on "Ancientand Modern Liberty,"was written as he navigated his way--politically, intellectually,and personally-through the tumult in ideas and political practice that shook
France from the late eighteenth century to the early nineteenth century.In this context, Constant took up the deepest questions of government, includingthose involving the relevance of classical democ-
55 See Holmes,BenjaminConstantat 12, 17-19 (cited in note 42) (notingthat "Constant's
celebratedlecturecomparingancientand modernliberty"was deliveredafterhis experiencesin
the TribunatandNapoleon'sgovernment).
56 For an analysisof the debates of that period, see AurelianCraiutu,Liberalismunder
Siege:The PoliticalThoughtof the FrenchDoctrinaires58 (Lexington2003) (describingConstant'seffortsto develop"viablerepresentativeinstitutions"in Francewhile avoidinga "dangerous" returnto the monarchy).See also id at chs 3, 5 (describingFrenchpoliticalphilosophers'
effortsto createa viablegovernmentin the wake of the 1789Revolution).
57 Holmes,BenjaminConstantat 13 (cited in note 42) (notingthat Constant'sworkoutside
of the realmof the strictlyphilosophical"allow[s]us to penetratedeep to the psychologicalroots
of liberalpolitics").Constantwas also a novelist,and a masterdelineatorof humanmotivation
and introspection.See, for example,BenjaminConstant,Adolphe37 (Penguin1964) (L.W.Tancock,trans)("Atthat time all I wantedwas to give myselfup to the kind of primitiveand impulsive reactionswhichlift the soul out of the commonrut and make it look upon everydaythings
with disdain.").
58 See Holmes,BenjaminConstantat 4 (citedin note 42).
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racy to the modern world,and the nature and future of freedom itself
withinthe modern,pluralist,capitalistnation-state.59
To be sure, Constant was deeply interested in constitutionalism.
He was particularlyinterested in the role that a balance of powers
played within a constitutionalsystem."Perhaps his ultimate achievement in this context was to arriveat the convictionthat (constitutionally) limited and representativegovernmentthat both protected individual rights (that is, a privatesphere), and encourageda realisticand
appropriatelevel of engagementin politics,was the best form of governmentfor the modernworld.61
Whatwas Constantfor?As StephenHolmes has describedit:
Constantadvocateda constitutionalsystem that stipulateddirect
popular elections, integral renewal and inviolabilityof representatives,two chambers,an executive veto, the right of dissolution,
a responsibleexecutive liable to dismissal,an independentjudiciary,trial by jury,a ban on retroactivelaws, absolute freedom of
the press, and an institutionalbarrierbetween the army and the
police. The legislaturewas to have the right to initiate new laws
and repeal old ones; and it was to control the purse strings of
government,voting every year on taxes and on support for the
armedforces.Equallyimportant,it was to scrutinizeall executive
actionssuch as treatieswith foreign governments.62
Perhaps his most significant contributionis his vigorous defense of
governmentby elected representatives.'
In arriving at these views, Constant looked admiringlyto the
handiworkof the American Founders.64He evinced a strong affinity
59 See id at 19-20.
60 See BenjaminConstant,Principlesof PoliticsApplicableto All Governments35 (Liberty
Fund 2003) (Etienne Hofmann,ed) (Dennis O'Keeffe,trans) ("The mutualsupervisionof diverse sections of the governmentis useful only in preventingone of them from aggrandizing
itself.").In this, though,he emphasizedthe role that the King would play as a neutralpower
standingabove all politicalpartiesand groups.See id at 51 ("Whenhereditarymonarchyrested
on divine right,the very mysterywhich sanctionedthis theocraticinstitutionwas able to invest
the monarchwith superiorenlightenment.").See also id at 151 ("[W]ebelieve ... that the indispensableconditionsfor makingjudicialpower the safeguardof citizensare the same under all
forms of government.").It bearsconsideringwhetherJusticeBreyerhas come to see judges as
replacingkingsin this role.
61 See Holmes,BenjaminConstantat 2-3 (cited in note 42) (noting that Constant'sphilosophyreflectedhis experiencesduring"theRevolution,the Restoration,and the Empire").
62 Id at 131 (elaboratingalso the need for checks and balancesbetween branchesof government).The liberalside of Constantis emphasizedin AurelianCraiutu,The Battlefor Legiti28 HistoricalReflections471 (2002).
macy:Guizotand Constanton Sovereignty,
63 See Holmes,BenjaminConstantat 132 (citedin note 42).
64 See id at 49. See also GarryWills,ExplainingAmerica:The Federalist265 (Doubleday
1981) ("Wehave been told that Madisonpitted interestagainstinterestin a constructiveprocess
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for Scottish Enlightenment thought, including that of David Hume,
Adam Smith,and Adam Ferguson--thoughtthat itself had had a profound influence on the American Founders.(Indeed, Constant had
spent a formativeyear in Edinburgh.65)The Constitutionhad already
settled most of these matters:the Constitution,for example, and the
American people, were fully committed to government by elected
representatives,an independentjudiciary,separationof powers more
generally,and trial by jury,thanks in large part to the influentialwritings of another liberal French thinker,Montesquieu.This being the
case, it is not clear what Justice Breyer's appeal to Constant adds.In
interpretingour own Constitution,why not cut out the middleman,
and go straightto the Foundersthemselves?It is not at all clear that
an originalist approach to constitutional interpretation,of the sort
advocated by JusticesThomas and Scalia, is any less faithful to the
spirit of "active liberty"as delineated by Constant and the Constitution, than is JusticeBreyer'sprogressivelyinflected,"purposive"legal
process approach.
If we move beyond Constant'sdefense of representativegovernment (in the face of claims of Rousseau,Robespierre,and the appeal
to many of a revival of the classicalGreek polis) to his advocacyof a
politics for the modern world that sagely combined"the liberty of the
ancients"with the "libertyof the moderns,"the same considerations
arise.To be sure,there are,and have been, Americanswho believe that
citizens should focus on private concerns alone, and not bother themselves with questions of the public good as advancedthroughparticipation in public life. And to be sure,there are, and have been, Americans who believe that the good life can be lived only through sustained, direct, and continuous (to the point of full-time) participation
in government.We could doubtless find people who claim that the
practice of direct democracyin service of the collective good should
always trump claims made on behalf of private interest and private
And the strucright.But the AmericanFoundersdid not believe this.6"
ture of our governmentdoes not reflect either of those extremes:in its
basic outlines, its "framework,"as Justice Breyer likes to describe it
(and the justificationsthat were made to defend it) (p 110), it repreof self-correction[,but Madisonreally said] that interestis to be eliminatedfrom the political
arena,distilledout of the process.").
65 See Holmes,BenjaminConstantat 183 (cited in note 42). See also GertrudeHimmelfarb, The Roads to Modernity:The British,French,and AmericanEnlightenments94, 200-01
(Knopf 2004) (findingthe influenceof the ScottishEnlightenmenton earlyAmericanpolitical
thinkersboth FederalistandAntifederalist).
66 See, for example,Amar,TheBill of Rightsat xii (cited in note 50) ("A close look at the
Bill [of Rights]revealsstructuralideas tightlyinterconnectedwith a languageof rights;states'
rightsandmajorityrightsalongsideindividualandminorityrights.").
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sents a sage combination of both.67 It accepts what Constant, in his
times,in his country,was forced to argue at length:that liberalismand
democracywere not opposites,but rather,ultimately,mutuallysupportive."The American Founders(as Constanthimselfclearly saw) knew
this."And, for that reason, we already have a system of government
that looks to both ancientand modernlibertyas worthyof protection.
B. Active Libertyas Tool
Justice Breyer's decision to remindus of all of this philosophical
traditionin the first chapter of Active Libertyis all to the good-and
entirely uncontroversial.He then, however,purports(in a chapterentitled "Applications")to demonstrate the way in which an attitude
mindful of the importanceof Constant's"activeliberty"helps him to
think through (if not ultimately decide) hard cases of contemporary
constitutionallaw. It is probablynot quite fair to say that Constant's
conceptionsof libertyhave nothingto do with JusticeBreyer'sapplications, because the claims of representativegovernmentacting collectively (through legislation) in the face of counterclaimsanchored in
private right are common in questions coming before the Supreme
Court.70 But Constant was concerned chiefly with questions involving
the fundamental framework of constitutionalgovernment-such as
should we have an executive,or should we have an elected legislature,
or shouldcriminaldefendantsbe tried before a judge alone,or with the
assistanceof a citizenjury? Constantwas not concernedwith the sorts
of interpretivequestions that Breyer wishes to discuss,such as closely
contested questions of the meaning of highly technical provisions of
67 Id ("Individualand
minorityrightsdid constitutea motif of the Bill of Rights-but not
the sole, or even the dominant,motif.").
68 Holmes,BenjaminConstantat 54,73 (cited in note 42) ("[Constant]drewthe distinction
[betweenancientand modernliberty]sharplyin order to emphasizethe tight interdependence
of public influenceand privatesecurity.").AurelianCraiutuargues,however (in disagreement
with Holmes), that Constant'sthought emphasizesliberalismmore than democracy.Craiutu
arguesthat Holmes tends to gloss over the attendanttensions between liberalismand democracy.See AurelianCraiutu,Liberalismunder Siege at 17 (cited in note 56) ("[T]he historyof
nineteenth-centuryFrenchliberalisminvitesus to reflecton the uneasyalliancebetweenliberalism anddemocracy.").
69 Holmes,BenjaminConstantat 49 (cited in note 42) (describingConstant'sattractionto
the AmericanRevolutionariesbecause they did not requirethat individualssubordinatetheir
desiresto the needs of the state).
70 See, for example,MinersvilleSchoolDistrictv Gobitis,310 US 586,591 (1940) ("A grave
responsibilityconfrontsthis Courtwheneverin courseof litigationit mustreconcilethe conflictSee also WestVirginiaStateBoardof Educationv Barnette,
ing claimsof libertyand authority.").
319 US 624, 646-47 (1943) (Frankfurterdissenting)(notingthat the conflictbetween individual
rightsandstate powercreatesverypersonalstakes,even for the justicesdecidingthe case).
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the McCain-FeingoldAct." As Justice Breyer recognizes,moreover,
Constant arguedfor the importance(as Breyer himself does) of both
the liberty of the modernsand the liberty of the ancients.As such,appealing to Constant's concepts-other than rhetorically,which is,
really, what Justice Breyer does in this book-is of little help to a
judge in calibratingwhat particularblend and balance of them is appropriatein arrivingat a decisionin each particularcase.
There is little obvious harm done by JusticeBreyer's call for an
animatingfocus on purposesand consequencesin the service of active
liberty when he applies them to the sorts of legal problems that for
many people, specialists aside, will matter least.72Most prominent
amongst these are the sorts of complex and seeminglyapoliticalregulatory cases that most interested the original legal process scholars
and-not coincidentally-Justice Breyer himself.73The inadequacyand, indeed, the harm-of JusticeBreyer'sfocus on purposesand consequences,by contrast,is thrown into high relief the moment he ventures into the contentious territoryof high profile constitutionallaw
that, for many people, will mattermost.
1. Affirmativeaction.
Justice Breyer's efforts in this book to situate affirmativeaction
withinhis "activeliberty"frameworkare particularlyrevealingand will
serve as my main illustration.In the twin decisionscoming out of disputes over the University of Michigan'saffirmativeaction programs,
Justice Breyer aligned himself with Justice O'Connor at the Court's
ostensibly"moderate"center.74If we look at "activism"as a numerical
proposition-did the justice vote to void a governmentallaw or practice, or did he or she "defer"to the govemment?-he was 50 percent
71 See McConnellv FEC, 540 US 93, 233-34 (2003) (addressingthree highly technical
provisionsof a statute regulatingelection advertisingin an opinion so long that four justices
collaboratedto writepartsof the majority).
72 See Peter M. Haas,Introduction:
EpistemicCommunitiesand InternationalPolicy Coordination,46 Intl Org 1,5 (Winter1992) (notingthatepistemicagreementamongpolicyexpertsis
"possibleonly in those areasremovedfrom the politicalwhirl").This is not to say that there is
not a good deal of nonobviousharmin these cases inherentin a "purposive"approach.These
statutes typicallyhave many,often conflicting,purposes.The decision to identify one as paramount and overridingis commonlya highlypoliticalact. Where an overridingpurposecan be
identified,it can be at such a high level of abstractionas to be useless in resolvingwith any definitivenessany concretelegal question.R. ShepMelnick,Betweenthe Lines:Interpreting
Welfare
Rights53-54,84-92,207-16 (Brookings1994).
73 Kersch,SyntheticProgressivismat 247-48 (cited in note 1).
74 Breyerjoined O'Connor'smajorityopinionand Ginsburg'sconcurringopinionin Grutter v Bollinger,539 US 306, 310 (2003).He also concurredin the Court'sjudgmentin Gratzv
Bollinger,539 US 244 (2003),wherehe joined O'Connor'sopinionexceptwhereit joined thatof
the Court.See id at 281-82 (2003)(Breyerconcurring).
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activist and 50 percent restrainedin the Michigancases. Breyer and
O'Connor both voted to strike down the affirmative action plan
adopted by the undergraduateadmissionsoffice, which awardednumericalbonus pointsto applicantsfromspecifiedminorityraces,"but to
uphold the affirmativeaction plan adopted by the law school's admissions office,whichtook race into accountas a more nebulous"plusfactor.""Both admissions offices sought to justify their plans on the
groundsthat they were aimed at the "compellingstate interest"of creating a racially diverse campus environment.Justices O'Connor and
Breyerboth acceptedthis rationale.77
In his discussionapplyingan attitudemindfulof the claimsof active liberty to affirmative action programs,Justice Breyer draws a
clear line between JusticeThomas's"color-blind"approachto interpreting the FourteenthAmendment's Equal Protection Clause, as it
applied to these admissions schemes, and his own "more narrowly
purposive"interpretationof the same constitutionalclause (p 77). As
JusticeThomassees it, "the equal protectionprinciplereflects our Nation's understandingthat such classificationsultimately have a destructiveimpact on the individualand our society.""7
Breyer's own apfocused
on the achieveand
more
narrowly
proach is less categorical,
ment of a sensible result (p 77). When one approachesthe question
from such a perspective,he argues,one is freer to draw a practicaldistinction between the classificationsaimed at achieving a socially desirable result, and classificationsaimed at thwartingone (pp 78-79).
The decision of governmentsto classifypersonson the basisof race,he
tells us,may be undertakenin some cases with "malign"purposes-that
is, with the objective of "exclusion"rather than "inclu[sion]"(p 83).
This "malign"purposewould be impermissiblebecause it is not aimed
at achieving the right result.The decision of governmentsto classify
persons on the basis of race in other circumstances,however, has a
"benign"purpose (pp 78-79)-that is, it is aimed at the objective of
"inclu[sion]"ratherthan "exclusion."This is constitutionallypermissible (if narrowlytailored in service of a compellinggovernmentinterest) because it is aimed at a desirableresult (pp 83-84).
Breyer lays out two possible justificationsfor holding racial classificationspermissiblein cases involvingbenign discriminationaimed
at achieving the right result (both of which are offered by Supreme
75 Gratz,539 US at 276-79 (invalidatingan affirmativeaction programbecause the setasidesandbonusstructureswere rigid,not flexible).
76 Grutter,539 US at 338 (upholdingan affirmativeaction plan that considereda "broad
rangeof qualitiesandexperiences").
77 See id at 325.
78 Id at 353 (Thomasdissenting).
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Court justices in earlier rulings on affirmativeaction). He then, in
turn, offers his own "activeliberty"justificationfor this and touts his
own approach'sspecial virtues.The first justification-a staple of Justice Brennan's (that is traced back here to earlier rulings by federal
JudgeJohn MinorWisdom)-would be to hold that, under a principle
of equality,the "Constitutionis color consciousto prevent discrimination being perpetuatedand to undo the effects of past discrimination"
(pp 79-80).79 The second justification-the groundingof Justice Powell's opinion (speakingfor himself only) in Regentsof the Universityof
Californiav Bakke?-is to hold that, under a principleof liberty,"the
Constitution grants universities especially broad authority to determine for themselves the compositionof their student bodies" (p 80).0'
Justice Breyer argues,however,that a close readingof the University
of Michigancases demonstratesthat neither of these considerations-but insteadhis own-were determinative(pp 80-81).
The Rehnquist Court's decisions, he argues--quoting Justice
O'Connor'sopinion at length-are grounded not primarilyin either
liberty or equalityprinciples,but, instead,in "practicalconsiderations"
(p 81). In Gratz v Bollinger"and Grutterv Bollinger,"the meaningof
the Equal ProtectionClause,as applied,derived chiefly from the fact
that:
[H]igh rankingretired officers and civilianleaders of the United
States military assert that "based on [their] decades of experience," a "highlyqualified,raciallydiverse officer corps ... is essential to the military'sability to fulfill its principalmission to
provide nationalsecurity."...
Studentbody diversity... better preparesstudentsfor an increasingly diverse workforceand society,and better preparesthem as
professionals.... [E]ducation[is] pivotal to sustainingour political and culturalheritage [and plays] a fundamentalrole in maintainingthe fabricof society....
[N]owhere is the importanceof ... openness more acute than in
the context of higher education.Effective participationby members of all racialand ethnic groups in the civic life of our Nation
is essential if the dream of one Nation, indivisible,is to be real79 Citing UnitedStatesv JeffersonCountyBoard of Education,372 F2d 836, 876 (5th Cir
1966)("Thecriterionis the relevancyof color to a legitimategovernmentalpurpose.").
80so438 US 265 (1978).
81 Id at 271-72 (strikingdown a medicalschool'squota-basedaffirmativeactionplan but
allowingraceto be used as a factorin admissions).
82
539 US 244 (2003).
83 539 US 306 (2003).
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ized.... [Indeed,]the path to leadership[must]be visiblyopen to
talented and qualifiedindividualsof every race and ethnicity.All
members of our heterogeneous society must have confidence in
the openness and integrity of the educational institutions that
provide this training.... [And] all [must]participate(pp 81-82).8
This evidence and these argumentscount for a great deal. But
Justice Breyer is apparentlynot content to leave these argumentsto
rest on foundationsof practicalityalone. "Whatare these arguments,"
he asks in turn,"but an appeal [not to liberty,not to equality,but] to
principlesof solidarity,to principlesof fraternity?"(p 82).8
But, to be fair, Justice Breyer doesn't rest his constitutionalapproval of racial preference programstoo deeply on the principle of
fraternity.86For,immediatelyafter that, he adds "to principlesof active
liberty"(p 82). But he doesn't rely too deeply on "activeliberty"either
(id). Immediatelyafter that (on the road, we might say,from Paris to
Port Huron) he adds, "[or] to maintain a well-functioningparticipatory democracy"(id). The ease with which Breyer moves with equivalence between these terms is troubling.For it suggeststhat the bottom
line in these cases for this Justiceis that affirmativeaction is constitutional because a lot of people say it "work[s]"and is "helpful"(p 83).
And if they say it is helpful, he seems to imply,there must be some
useful principle to justify it. It seems not to matter,really,to Justice
84
Citingid at 330-32.
Some readersmay find JusticeBreyer'sappealto the principlesof the FrenchRevolution, ratherthan our own, to be jarring,and possiblyinadvertent.It is far fromunprecedentedin
his writings,though.In encouragingan increasingengagementby Americanlawyersandjudges
with the case law,legal concepts,and politicaland institutionalarrangementsof other countries,
Breyer has cited Wordsworth'spaean to the FrenchRevolution.See StephenBreyer,Keynote
Address,Symposiumon Democracy(cited in note 14) ("[W]hatcould be more excitingfor an
academic,practitioner,or judge,than the 'global'legal enterprisethat is now upon us? Wordsworth'swords,writtenabout the FrenchRevolution,will, I hope, still ring true:'Bliss was it in
that dawnto be alive/Butto be youngwas very heaven.'").And he has expresslyconsideredthe
relevanceof the principleof fraternityto contemporaryAmericanjurisprudence.
In light of this,
his referenceshere to fraternitycould be read as a subtle gesture towardsincreasingtransnational dialogue or deliberationin American law. See Stephen Breyer,Riflexions Relativesau
RemarksAddressedto the TroisiemeCongresde l'Associationdes Cours
Principede Fraternitg,
ConstitutionnellesAyanten Partagel'Usage du Franqais,Ottawa,Canada(June20, 2003),online
at http://www.supremecourtus.gov/publicinfo/speeches/sp_06-20-03.html
(visitedApr 4, 2006) (stating that judges everywhereface the same types of problemsand have the same types of legal
instrumentsto fix them, and that to solve these problems,the differencesin languagedo not
matter).
86 I would note here that,in a failed opportunityfor some useful cosmopolitanism,Justice
Breyerneglectsto note that Franceitself (untilvery recently)strenuouslyrejectedracialpreference programsas the necessaryimplicationof these very same principles(appliedmore appropriatelyin that case). See ThomasSowell,AffirmativeAction aroundthe World167 (Yale 2004)
("Francehas passed a law [around2001] requiringpoliticalpartiesto have equal numbersof
male andfemalecandidates.").
85
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Breyer whether we call that principlefraternity,participatorydemocracy,or active liberty.
So how does Justice Breyer know that racial preferences are
helpful,or that they work?Here, looking to the "butterflyeffect"logic
that Justice Breyer deployed most famously in his dissent in United
Statesv Lopez"might prove unexpectedlyilluminating."There,Justice
Breyer arrived at the conclusion that the possession of a gun in a
school zone had a "significanteffect"on interstatecommercebecause
the possession of guns in school zones is upsetting to kids in school,
which throws off their concentration,which hurts their grades,which
affects theirjob prospects,which lowers their productivity,which hurts
the economy's total productivity,which lowers GNP,which depresses
commerce,both domesticallyand internationally,which puts Americans at a distinct economic disadvantage,vis-a-vis the Japanese.8 If
87 514 US 549 (1995).
88 See id at 616 (Breyerdissenting)("[I]ndeterminingwhethera local activitywill likely
have a significanteffect upon interstatecommerce,a court must consider,not the effect of an
individualact (a singleinstanceof gun possession),but ratherthe cumulativeeffect of all similar
instances.").
89 See id at 618-25 (claimingthatallowingthe law to stand"wouldnot expandthe scope of
[the Commerce]Clause"but"simplywouldapplypre-existinglaw to changingeconomiccircumstances").JusticeBreyer,of course,did not introducethese sorts of argumentsinto American
constitutionallaw.Theywere a definingfeatureof New Deal constitutionalthought,andwere,in
many respects,the consequenceof the insinuationinto constitutionalreasoningof the social
sciences,which emphasizethe significanceof the interconnectednessof a broadarrayof social
phenonena.See Willrich,City of Courtsat 86 (cited in note 28) (noting that social scientists'
somewhatundertheorizedclaimsof interconnectednessblended"hereditarianand environmentalist explanations"while soundly rejecting"formalistconception[s]");Haskell, Emergenceof
ProfessionalSocial Scienceat 252-53 (cited in note 28) (notingthat by the early twentiethcentury,politicians,philosophers,sociologists,and economistshad all employedthemesof interconnectednessin their work). See also Wickardv Filburn,317 US 111, 125 (1942) (drawingwheat
productionfor personalconsumptionunderthe CommerceClausebecauseit exertsa "'direct'or
'indirect"'"economiceffect on interstatecommerce");NLRB v Jones& LaughlinSteelCorp,301
US 1, 37 (1937) (expandingthe federal government'spower under the CommerceClause to
includeall activitieswith"sucha close and substantialrelationto interstatecommercethat their
control is essentialor appropriateto protect that commercefrom burdensand obstructions").
JusticeBreyer,however,in holdingthat,for all intentsand purposes,there are no limitsto interconnectivityarguments,and,hence (so long as a fundamentalrightis not trenchedupon),there
are no limitsto the police powerof the nationalcentralstate that drawsupon them,citingostensibly collective purposes,follows an approachthat is common among contemporaryconstitutional liberals.See, for example,Lopez, 514 US at 618-25 (Breyer dissenting).For this reason,
Cass SunsteinclassifiesBreyeras being withinthe mainstreamof moderate,minimalistconstitutional thought.CassR. Sunstein,Radicalsin Robes:WhyExtremeRight-WingCourtsAre Wrong
for America237, 239 (Basic 2005).On the rise and spreadinginfluenceof the social sciencesin
the United States in the late nineteenthand early twentiethcenturies,see Daniel T. Rodgers,
Atlantic Crossings97 (Belknap 1998) (describingthe flow of social science knowledge from
European-trainedAmerican students to America);Dorothy Ross, The Origins of American
Social Science xiii (Cambridge1991) ("[The] liberal values,practicalbent, shallow historical
vision, and technocraticconfidence [of social science] are recognizablefeaturesof twentiethcenturyAmerica.").JusticeBreyerplaysthis same game,incidentally,in his applicationconcern-
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patternsof logic like this are acceptablein determiningconstitutionality, then, of course,it should be no trouble at all to argue,in line with
the butterflyeffect, that racialpreferenceshave a significanteffect on
the achievementof participatorydemocracyand active liberty.Justice
O'Connordrawsthese connectionsin Grutterwith no great difficulty."
And JusticeBreyer breezilyassents.
Justice Breyer was able to defend himself against charges of importing butterflyeffect logic into the marrowof constitutionallaw by
arguingthat these relevantfactualfindingsand extendedlogicalchains,
however fanciful,were not his, but the legislature's,and, as such, were
arrivedat after extensive study and the collection of vast amounts of
testimony and empiricalevidence after extensive public hearingsand
debates." But this was certainly not the case in the University of
Michigancases.There, the empiricalevidence, such as it was, was offered not by the legislature(as had been true in the New Deal cases
using similarlogic92),but by the defendant and the "manyknowledgeable groups"that submitted amicus briefs to the Supreme Court (p
83). What did this "evidence" show? Without granting admissions
preferenceson the basis of race:
Too many individualsof all races would lack experience with a
racially diverse educational environment helpful for their later
effective participationin today's diverse civil society.Too many
individualsof minorityrace would find the doors of higher education closed; those closed doors would shut them out of positions of leadershipin the armed forces, in business,and in government as well; and too many would conclude that the nation
and its governmentalprocessesare theirs,not ours (id).
"If these are the likely consequences,"Justice Breyer asks earnestly, "as many knowledgeable groups told the Court they werecould our democraticform of governmentthen function as the Framing the constitutionalityof campaignfinanceregulationschallengedon the groundsof the freedom of speech.There,he arguesthat if the regulationswere invalidatedon the groundsof the
freedom of speech, the nation'scommitmentto democracycould be called into question as a
matterof appearance,underminingconfidencein the politicalsystem,and, hence, undermining
our actualdemocracyin fact (that is,appearancewouldbecome reality).See McConnell,540 US
at 237 (Breyer).If the regulationsare well-intentionedand helpful,there must be a principleto
explainwhy this is the case (let's say "activeliberty").And if it is helpfuland principled,it must
be constitutional.
90 See Grutter,539 US at 331 (noting that the Court has "repeatedlyacknowledgedthe
overridingimportanceof preparingstudentsfor work and citizenship,describingeducationas
pivotalto 'sustainingour politicaland culturalheritage'with a fundamentalrole in maintaining
the fabricof society").
91 See, for example,Jones & LaughlinSteel,301 US at 22-23, 23 n 2 (describingand quotthe
ing
government'sempiricalfindingson the NationalLaborRelationsAct).
92 See Grutter,539 US at 310-14;Gratz,539 US at 248-51.
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ers intended?" (id). Justice Breyer's more criticallyminded readers
will note that this empiricallyminded Justice,with a deep and longstandinginterestin rigorouseconomic analysisand complex questions
of the relationshipof science and the law,93seems here to have a great
deal of difficultyin distinguishingbetween genuine data and multiculturalistcant.The notion that,today,in the absenceof racialpreference
schemes, "[t]oo many individuals of minority race would find the
doors of higher education closed," and be barred from positions of
leadership is, of course, not a fact at all (p 83). It is an assertion,
wrappedin a highly politicizednormativeassessment,that no amount
of rhetoricalappeal to empiricismcan conceal.How many,after all, is
"too many"?
JusticeBreyer has been consistentlypraisedfor stickingclosely to
facts
the
and refusingto make unwarrantedgeneralizationsand logical leaps.But here, as he writes about affirmativeaction in Active Liberty,he does not trouble to distinguishthe effects of racialpreferences
at a tiny sliver of elite schools from those at the great mass of other
colleges and universities,from whichfew,blackor white,are excluded.94
For those who parse things more carefully,however, the most likely
effect of racial preferenceschemes in universityadmissionsis to trigger a "pervasiveshiftingeffect,"in which blacks (and other preferred
groups receiving preferences in admissions) are simply bumped up
one or two or three levels from the schools to which they would normally be admitted.The likely consequenceof this being that those who
avail themselves of these preferences-understandably,under the circumstances-are put in a position where they feel (and, in many respects, are) underqualified,and desperatelystrugglingto catch up, to
demonstrate that they "deserve"to be there.95
To be sure, there has
93 See Stephen Breyer, The Interdependenceof Science and Law, 82 Judicature24, 27
(1998).
94 StephanThernstromand AbigailThernstrom,Americain Blackand White:One Nation,
Indivisible421 (Simonand Schuster1997)("Signup [forcollege] and you can go. And if you do
well, even at virtuallyunknownplaces,the doors to jobs and furthereducationwill have been
opened.").See also Sowell,AffirmativeAction at 155 (cited in note 86) (notingthat the University of Coloradoat Denver admits68 percentof black applicantsand 82 percentof white applicants,and both applicantgroupshave similartest scoresandsix-yearcollege graduationrates).
95 See Sowell,AffirmativeAction at 145-50 (cited in note 86) ("[P]referentialadmissions,
beginningat the top elite institutions,would create a nationwidemismatchingof minoritystudentsand the institutionsthey attended,all up and downthe academicpeckingorder.").See also
Ron Suskind,A Hope in the Unseen:An AmericanOdysseyfrom theInnerCityto theIvy League
362-65 (Broadway1998) (narratingthe academicand social tribulationsof a black man who
attendedhighschoolin inner-cityWashington,D.C.,and then matriculatedat BrownUniversity).
There is a live disputeover whether,in specificempiricalcontexts(such as undergraduates,
graduate,and law schools) affirmativeaction actuallyleads minoritystudentsto either fail to
graduateor to fail key professionalqualifyingexams.I make no such claim here. Compare,for
example, Richard H. Sander,A SystematicAnalysis of AffirmativeAction in AmericanLaw
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been intense debate amongst scholars about whether increasing the
numberof blacks at the very highestreachesof the elite universitiesis
helpful to their careerprospects.(If a "credentialing"effect exists,and
they graduate after having been shoehorned into an especially difficult environmentit is, indeed, likely to be effective,but such an effect
would apply to whites as well.9) But there is no evidence presented
here that in the absence of these preferences,blacks would be largely
shut out of American higher education and potential leadershippositions in society,as JusticeBreyer boldly asserts.
The more devastatingthe consequences that "manyknowledgeable groups"allege will flow from the elimination of racial preferences in universityadmissions,the more the advocates of those preferences are forced to acknowledgethat,far from being a "plusfactor"
that simply tips the scales, the more the applicant'srace must have
been decisive in the admissionsdecision (see pp 76, 83). And, if this is
the case, then the distinction that Justice Breyer (and other liberal
"radicalsin robes"97)draws between "benign"and "malign"discrimination becomes all the shakier.The logic here is tight enough, and
recourse to butterflyeffects are unnecessary.The number of students
admittedto a university'sentering class constitutes100 percent of the
students admitted to the entering class.When a student is admitted
because he is black,anotherstudent is denied admissionbecause he is
not. When universities celebrate their accomplishmentof increasing
the percentageof students who are black in their incomingclass,they
are simultaneouslycelebratingtheir accomplishmentin reducing the
percentage of students who are not black in that class. (When they
celebrate their success in increasing the percentage of students of
Schools,57 StanL Rev 367,481 (2004) ("Theprogramsset blacksup for failurein school,aggravate attritionrates,turn the bar exam into a majorhurdle,disadvantagemost blacksin the job
market,and depressthe overallproductionof black lawyers."),with David L. Chambers,et al,
The Real Impactof EliminatingAffirmativeAction in AmericanLaw Schools:An Empirical
Critiqueof RichardSander'sStudy,57 Stan L Rev 1855,1857 (2005) (arguingthat Sander"has
significantlyoverestimatedthe costs of affirmativeaction and failed to demonstratebenefits
from ending it"). See also Stephen Cole and Elinor Barber,IncreasingFacultyDiversity:The
OccupationalChoicesof High-AchievingMinorityStudents236-37 (Harvard2003) ("[H]aving
low levels of academicachievement[even when coupledwith high levels of undergraduateadmission]will keep downthe numberof studentswho decideto becomecollege professors.").
96 See William G. Bowen and Derek Bok, The Shape of the River:Long-TermConsequencesof ConsideringRacein Collegeand UniversityAdmissions276 (Princeton1998) ("[O]ur
datashow that the overallrecordof accomplishmentby blackstudentsaftergraduationhas been
impressive.").ConsiderThernstromandThernstrom,Americain Blackand Whiteat 422 (cited in
note 94) ("[N]othingunderthe sun except hardworkwill bringabout thatparity[in educational
andeconomicopportunities].").
97 ConsiderSunstein,Radicalsin Robes at xiii-xiv (cited in note 89) (portrayingthe subjects of the book's title as rigidand ideologicallyresolute-a categorizationthat could fit Breyer
as well as the conservativejudgesthatSunsteindescribes).
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color, they celebrate their success in reducingthe percentage of students who are white.) It would be interestingto have universitypresidents pledged to the use of racialpreferencesin universityadmissions
spend a year publicly advocating their position by speaking frankly
about this from the flip side, that is, by celebrating their sustained
campaignto reducethe percentageof white (or, in some cases,Asian)
students in their incoming class. But, of course, they could never do
that. For that would be "malign"discrimination.If they do the exact
same thing,for the exact same reason, and talk about it instead as increasingthe percentageof black studentsin their incomingclass,that,
however,is "benign"discrimination.In light of that, it is worth taking
Justice Breyer's assertions that he looks to "substance,"and not
"forms,"and to "real world"consequences,as opposed to verbal labels, in deciding cases-a constant refrain of this "pragmatist"-with
more than a grainof salt.
It is worth noting that Justice Breyer'sjurisprudencein affirmative action cases is thus,in its fundamentals,not that differentfrom the
judicial maximalistJustice Brennan's.What is different about Justice
Brennanis that he was an open advocate of a government-sponsored,
group-basedredistributionscheme justified by a (general) history of
The humble, minimalistJustice Breyer, by contrast- as
oppression.9"
his split vote in the Michigan cases shows-insists that universities
conceal what they are doing by calling it a "plus factor"rather than
being so d6class6 as to attach a number to it in public (even if, as a
practical matter, the real world consequences between the two approachesare all but indistinguishable).99
Which bringsus to the depths of JusticeBreyer'scommitmentto
democracy.The virtue--and drawback--ofJusticeBrennan'sapproach
to affirmativeactionis that,becauseit is that of a maximalistwith clear
ideological views, it is obvious what the Court is doing.This,in turn,
can sparkdemocraticdeliberationof a very unruly,and even combusIt can motivate candidatesand political parties,and turn
tible, kind.m"
congressionaland presidentialelections.It can even lead presidentsto
pledge that, if elected, they will appointthe sort of judges who will reject JusticeBrennan'sapproachand in the processinvite the charge of
"radical""fundamentalism"from the academic tribunes of judicial
98 See Bakke,438 US at 335-38 (Brennan,White,Marshall,and Blackmunconcurringin
part and dissentingin part) (arguingthat the Constitutionand the Congressthat enacted the
1964 Civil RightsAct intended for institutionsto take positive action to mitigate prior racial
discrimination).
99 See Gratz,539 US at 295;Grutter,539 US at 337.
86 (Harvard2001).
100 See ChristopherL. Eisgruber,Constitutional
Self-Government
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Justice Breyer's "minimalist"approach--which (like
"minimalism."'o'
that of most otherjustices of the RehnquistCourt)upholds and works
to institutionalizethe "maximalism"of the Warren(and,in many cases,
Burger)eras,and (unlikethat of manyof the RehnquistCourt'sconservatives) endeavorsto extend itl•--by contrast,encouragesopacity and
duplicityby governmentalinstitutionslike the Universityof Michigan.It
abandonsBrennan'sapproachin favor of activelyaccordingnew constitutionalrecognitionto a novel governmentpurpose--"diversity"-which Breyer holds to be compelling,under the guise of humility.Its
modus operandi,as illustratedby these cases, is to permit the worldview of an insulated elite to trump a clear constitutionalvalue. This
policymakingelite knows exactly what is going on but-crucially, as a
matter of law-has no obligation to tell us what that is. This may be
consistentwith "activeliberty"as JusticeBreyer sees it. It is not, however, consistentwith basicprinciplesof Americandemocracy.
Justice Breyer then reads this newly compellingpurpose-"diversity"-back not only into the Constitutionbut also into the nation's
civil rights statutes.For, in addition to the FourteenthAmendment's
Equal ProtectionClause,affirmativeactionschemesalso commonlyimplicatethe CivilRightsAct of 1964.10And JusticeBreyersaysa good deal
in ActiveLibertyabouthis approachto statutoryinterpretation,
which,as
a Hart and Sacksprot6ge,is his naturalintellectualhome (pp 86-87).'1
Breyerspends a considerableamountof time in this book thoughtfully
explainingthe way in which statutesare best interpretedby the Court,
andprovideshelpfuldemonstrationsof the way he has approacheddifficult interpretivequestionsarisingout of the ForeignSovereignImmuni101 See Sunstein,Radicalsin Robes at xiv-xv (cited in note 89) ("It is not at all pleasantto
challenge,as wrong,dangerous,radical,and occasionallyhypocritical,the manypeople of honor
andgood faithwho have come to embracefundamentalism.").
102 For this reason,if historymatters(as indeed it does), we can see that minimalismand
perfectionismare not functionallyseparatecategories.In their substance,they are better viewed
as a tag team.See id at 33 (acknowledgingthat the WarrenCourtbehavedas perfectionistsand
were succeededby the presentminimalistCourt).On the extension,see Lawrencev Texas,539
US 558, 564-66 (2003) (invalidatinga Texascriminalstatute criminalizinghomosexualsodomy,
based on WarrenCourtand BurgerCourtprecedents);Stenbergv Carhart,530 US 914, 920-21
(2000) ("Weshall not revisitthose legal principles[thatgrantthe rightto an abortion].Rather,
we applythem to the circumstancesof the case.").
103 Paul Frymerand John D. Skrentny,The Rise of Instrumental
AffirmativeAction:Law
and the New Significanceof Race in America,36 Conn L Rev 677, 683-84 (2004) (noting that
affirmativeactionboth stemsfromand can be a violationof TitleVII).
104 As an administrative
law scholar,JusticeBreyer'sfirstinterestwas in questionsof statutory construction.His interestin constitutionalconstructioncame later.It seems that he rather
transferredthe "purposive"approachhe followedin the formerunchangedto
straightforwardly
the latter.See Kersch,SyntheticProgressivismat 257 (cited in note 1) (notingBreyer'sreticence
to engage constitutionalissues withoutwell-developed"empiricalevidence relied on by legislatures").
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ties Act, the FederalArbitrationAct, and the federalhabeascorpusstatute (pp 88-98). In these discussions,JusticeBreyerexplainsthat "the interpretiveprocess [in statutorycases is] an effort to locate,and remain
faithfulto, the humanpurposesembodiedin a statute"(p 95).The pragmatist JusticeBreyer sees statutesas aimed at solvingparticularproblems.And he understandsthe effortto solve thatproblemas the statute's
underlyingpurpose.In discerninga statute's purpose,Justice Breyer
(unlike,for example,JusticeScalia),is willingto availhimselfof all "logically relevant"materials,includinglegislativehistory(pp 18, 87-88). In
approachingthe FederalArbitrationAct, for example,he looks around,
and finds"[t]heonly directevidenceavailable-I wouldsay the only evidence available--indicatesthat, at the time of the statute'senactment,
membersof Congresssaw a problem... [and t]hey tried to attackthat
problemwitha statutetailoredto the problem'sscope"(p 95).
Justice Breyer does not bring up the 1964 Civil Rights Act (or
other civil rights statutes) in his discussion of racial preference
schemes.By refusingto apply the law to bar these schemes,of course,
JusticeBreyer is able to sidestep an inquiryinto its "purpose."•0o
The "purpose"of that Act was to end the prevailingsystem of racial segregation and subordinationin America.'"'Such a "purpose"
(like Ronald Dworkin'sunderstandingof constitutional"concepts"-in contradistinctionfrom the more narrowlydefined "conceptions")is
potentially quite broad.' But Congress specifically set out certain
means that it had voted were appropriatefor achieving those purposes-namely, the categoricalprohibitionson the forms of racialdiscriminationthat were stipulated in the Civil Right Act's text. Moreover, as both the text itself and the legislativehistoryof the text--that,
in other contexts,JusticeBreyer has held to be important-made very
clear, Congressprecludedthe use of racialpreferencesto achieve the
Civil Rights Act's purpose, to the point of opining that such preferences were not only not envisaged as appropriateinstrumentsfor the
achievement of the statute's goals, but amounted to violations of the
105 Justice O'Connor,whose opinion JusticeBreyer joins, mentions,but dismissesout of
hand,and withoutdiscussion,the statutoryargumentappealingto Title VII of the Civil Rights
Act. See Grutter,539 US at 343.
106 ConsiderThernstromandThernstrom,Americain Blackand Whiteat 138 (cited in note
94) ("Thegreat principleat stake was that every Americanshould be able 'to enjoy the privileges of beingan Americanwithoutregardfor his race or color."').
107 Ronald Dworkin,Law's Empire71 (Belknap 1986) ("At the [level of concept,]agreement collectsarounddiscreteideas that are uncontroversially
at
employedin all interpretations;
the [level of conception,]the controversylatentin this abstractionis identifiedand takenup.").
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core provisions of the Act itself, which barred discriminationon account of race.08
The Congress that enacted the Civil Rights Act of 1964 certainly
(to borrow Justice Breyer's words) "attack[ed]that problem with a
statute tailored to the problem'sscope" (p 95): it banned all forms of
race discrimination,includingthose stemmingfrom racialpreferences.
To avoid these difficulties,however,JusticeBreyer is driven to, in effect, argue that the enacting Congress did not fully understandthe
nature of the problem,or its scope.And for that reason,their prohibition on certain instrumentalmeans of addressingthat problem is no
longer bindingon him as a results-oriented,problemsolvingjudge. By
the time of the University of Michigan cases, the problem has been
newly defined in part as involving the creation of a racially diverse
polity,where all feel welcome (pp 78-79). The only way to fulfill this
"purpos[e]"or achieve this "objective,"is to give governmentbodies
wide latitude to engage in racial discrimination,when it is said to be
benign,to achieve the desiredconsequencesin service of the objective
(id). The racial preferencesplan adopted by the University of Michigan Law School "works"in this regard.And, because it works,it must
be legal (see id).
By the lights of some common definitionsof "judicialactivism"-whether a judge votes to uphold or strike down a law (or, as here, a
practice)'"--JusticeBreyer's vote in Grutterand other such cases can
be read as a textbook case of judicial restraint.By more thoughtful
standards,however,it is a textbook case of activistjudging,a case, that
is, in which a judge has clearly substitutedhis own understandingof
what the statute's purpose was, what its scope should be, and what
108 See Sowell, AffirmativeAction at 126 (cited in note 86) (citing legislative history to
demonstratethat legislatorsintended the Civil Rights Act of 1964 to be colorblind);John D.
Skrentny,TheMinorityRightsRevolution88 (Belknap2002) ("Congresscreateda weak EEOC
to makeTitleVII palatableenoughfor
[withenforcementpowersbasedon difference-blindness]
passage.");AndrewKull,TheColor-BlindConstitution200 (Harvard1992)("Theinitiativeof the
civil rights agencies would have been substantiallyfrustratedhad the courts ... enforced the
Civil RightsAct of 1964 as written.");Hugh Davis Graham,The Civil RightsEra:Originsand
Developmentof National Policy, 1960-1972 140 (Oxford 1990) (observingthat an AFL-CIO
lobbyist "insisted"that the 1964 Civil Rights Act not include quotas);Thomas Sowell, Civil
Rights:Rhetoricor Reality?37 (Morrow1984) ("Initially,civil rightsmeant,quite simply,that all
individualsshould be treated the same under the law,regardlessof their race,religion,sex or
othersuchsocialcategories.").
109 See, for exampleKeck,TheMostActivistSupremeCourtat 1 (cited in note 15) (defining
"judicialrestraint"as "a relative unwillingnessto declare constitutionallimitationson government");Gewirtzand Golder,So WhoAre theActivists?,NY Timesat A19 (cited in note 6) ("[A]
markedpatternof invalidatingCongressionallawscertainlyseems like one reasonabledefinition
of judicialactivism.").
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instrumentsare appropriate(that is, legal) for the achievementof that
objective.110
Thisspeaksdirectlyto the democraticbonafides of JusticeBreyer's
interpretive"attitude"(p 19).Althoughthereis a fairamountof evidence
that the "color-blind"interpretationof the FourteenthAmendment's
Equal ProtectionClause held by JusticesScalia and Thomasis not, in
fact, a reflection of the clause's originalmeaning (p 77),"'there is no
doubt whatsoever that colorblindnesswas part of the original intent,
original understanding,and original meaning of the Civil Rights Act
of 1964. Public opinion polls ever since, moreover,have continued to
Under these circumstances,can Justice
support that understanding."112
Breyer plausiblyargue that an interpretationof the 1964 Civil Rights
Act rejectinga "colorblind"understandingis more "democratic"than
a more faithfulreadingof the Act's meaning(pp 77-83)?
Well, sure he can. People do this all the time. But doing so would
require that they engage in some elaborate and highly creative democratictheorizing.One could similarlyargue,for example,that abortion rightsare indispensiblein a truly"democratic"polity,for, without
them, women cannot be full participantsin the polity's public life.113
Craftingsuch theories is the stock and trade of our more venturesome
political philosophers.It is not-and should not be-the stock and
trade of Article III judges.
Justice Breyer's discussion of affirmativeaction also provides a
useful perspectiveon the ostensible narrownessof his rulings.114A key
part of JusticeBreyer'sjudicial toolkit in many cases is the emphasis
110For a critiqueof this kind of willful"purposivism,"
see Eskridge,DynamicStatutoryInThe
terpretationat 25-34 (cited in note 72). See also R. Shep Melnick,StatutoryReconstruction:
84 GeorgetownL J 91,97 (1995).
Politicsof Eskridge'sInterpretation,
111 See, for example,Kull,The Color-BlindConstitution
at 5 (cited in note 108) ("[T]heidea
of color blindnessstandsin radicalcontradistinctionto a constitutionalorthodoxythat at every
stage of our historyhas permittedthe governmentto classifyby race so long as-by contemporarystandards-it classifiedreasonably.").
112 See id at 1 ("Themoraland politicalattractivenessof a rule of nondiscrimination
made
it for approximately125 years the ultimatelegal objectiveof the Americancivil rightsmovement.").On publicopinionregardingthese matters,see, for example,Melnick,84 GeorgetownL
J at 108 (cited in note 110).
113 See PlannedParenthoodof SoutheasternPennsylvaniav Casey,505 US 833, 856 (1992)
("The abilityof women to participateequallyin the economicand social life of the Nation has
been facilitatedby theirabilityto controltheirreproductivelives.").
114 See Sunstein,One Case at a Timeat xiv (cited in note 12) ("[C]ertainminimaliststeps
promoteratherthan underminedemocraticprocessesand catalyzeratherthanpreemptdemocraticdeliberation.").See also Sunstein,Radicalsin Robesat 27 (cited in note 89) ("[M]inimalists
do not want to take sides in large-scalesocialcontroversies.").
Thereare manyaffinitiesbetween
Breyer'sthoughtand Sunstein'sin a whole arrayof areas,includingtheir interestin risk assessment, democratictheory,and minimalism.See id at 237 (approvingof Breyer's deference to
legislativeexpertisein areasof regulationsuchas gun control).
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he places on the fit between the asserted government purpose that
implicates a constitutional right, and the least restrictive means of
achieving that purpose (pp 97-98). But Breyer never actually insists
upon a meaningful least restrictivemeans test in affirmativeaction
cases.Instead,he simplyredefines the scope of the purpose to expand
the scope of the permissiblemeans.
This is a failing, incidentally,that is not shared by Justices Clarence Thomas and Antonin Scalia, who insist in affirmative action
cases on a close fit between ends and means (see p 77). The Court's
"fundamentalist"conservatives,for instance,argue that racial preference schemes (which Breyer,like other liberals,concedes trench on a
fundamentalright), are permissibleonly when they are narrowlytailored to the objective of making up for past discrimination."•For
them, the paradigmaticcase holding such preferences constitutional
would involve remedial racial preference plans adopted by particular
institutionswith a demonstrablehistory of impermissible,intentional
discrimination."6These ostensibly formalistjudges,who insist, so it is
said, on broad,sweeping rules,would not accept the grantingof racial
preferences to Aleuts and Pacific Islandersby an institutionwith no
history of racialdiscriminationat all, or a historyof racialdiscrimination that targeted only blacks."'These are highly relevant distinctions.
JusticeBreyer,however,does not drawthem.
This is not simplythe case when we compareJusticeBreyer'sapproach to that of anti-affirmativeaction conservatives.The same is
true when we comparehim to liberalswith a penchantfor issuingrulings groundedin sweeping articulationsof principle,like JusticeBrennan. As Justice Breyer notes in Active Liberty,Justice Brennan repeatedly justified the constitutionalityof racial preference plans on
the socially transformativegrounds that they are legitimate,societywide responsesto the legacy of slavery(pp 79-80)."'To be sure,Justice
Brennan was never wholly consistent about this-he upheld racial
preference schemes as a matter of course no matter what (minority)
115 But see p 79 (approvingGrutterbecause the law school's affirmativeaction plan was
"narrowlytailored").
116 See City of Richmondv J.A. Croson Co, 488 US 469, 520 (1989) (Scalia concurring)
("The benign purpose of compensatingfor social disadvantages,whether they have been acquiredby reasonof priordiscriminationor otherwise,can no more be pursuedby the illegitimate
means of racial discriminationthan can other assertedlybenign purposeswe have repeatedly
rejected.").
117 See, for example,id at 498-99 ("[A] generalizedassertionthat there has been past discriminationin an entire industryprovidesno guidancefor a legislativebody to determinethe
precisescope of the injuryit seeks to remedy.").
118 Citing Wygantv JacksonBoard of Education,476 US 267, 278 n 5 (1986) (criticizing
Marshall'sdissentingopinionthat groundsaffirmativeactionprogramsin an amorphous"legitimate factualpredicate").
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racial group (or majoritysex) was involved,without botheringto distinguish the members of those groups from those who were the deBut Brennan'sformulationwas at least, in thescendants of slaves.119
took it seriously,it invited some
ory,potentiallylimiting:to those who
120
form of least restrictivemeans test.
Justice Breyer, however, makes a least restrictive means test
pointless in affirmativeaction cases through the sleight of hand of
holding a view that was once held by a single SupremeCourtjustice in
Bakke (and a view that was foisted upon him chiefly by an appeal to
the authorityof the Harvardadmissionsoffice), that is, as a matter of
bindingconstitutionallaw,"diversity"is a "compellingstate interest.121
For if "diversity"is now the interest (or, to adopt Justice'sBreyer's
preferred nomenclature,the "purpose"or "objective"),a sweeping
range of racial groups is now covered automaticallyby the terms of
the formulaitself.This was not the case under the approachesof Jus-
ticesScalia,Thomas- or Brennan.122
119 See Metro
Broadcastingv FCC,497 US 547,593 (1990) (Brennan)(upholding"minority
ownershippolicies [that]are aimed directlyat the barriersthat minoritiesface in enteringthe
broadcastindustry");UnitedSteelworkers
ofAmericav Weber,443 US 193,197 (1989)(Brennan)
(holdingthat Congress"left employersand unionsin the privatesector free to take such raceconscious steps to eliminatemanifestracial imbalancesin traditionallysegregatedjob categories").See also Croson,588 US at 539 (Marshalldissenting)(arguingthat a municipality'sfinding
that it discriminatedin the past-making affirmativeaction programsremedial-should be
acceptedby the Court).On the tendencyof racialpreferenceplansaroundthe worldtargetedat
particulargroupsto expand,as a matterof politicaland institutionaldynamics,almostineluctably to othergroups,see Sowell,AffirmativeAction at 10-11 (in Indiaand the United States),121
(in the United States),132-38 (generally)(cited in note 86) ("Thespreadof benefitsfromgroup
to group not only dilutes those benefits ... it can also make the initial beneficiariesworse off
afterthe termsof the competitionare altered.").
120 MetroBroadcasting,497 US at 594 (Brennan)("The [FCC's]choice of minorityownership policies thus addressedthe very factorsit had isolated as being responsiblefor minority
in the broadcastindustry.").
underrepresentation
121 See ThomasM. Keck,FromBakketo Grutter:TheRiseof Rights-BasedConservatism,
in
Ronald Kahn and Ken I. Kersch,eds, The SupremeCourtand AmericanPoliticalDevelopment
(forthcoming2006).See also Bakke,438 US at 311-12 (plurality)(stating,in a sectionjoined by
no other justice,that "the attainmentof a diversestudentbody ... is clearlya constitutionally
permissiblegoal").
122 Indeed,if we add to these quietshiftsof categoriesthe resolutelyahistoricalcharacterof
Cass Sunstein'sjudicial minimalism(it, for example, defends the continued viability of past
maximalistholdings,such as those of the WarrenCourt,on the groundsof contemporaryminimalism;it is also quite easy, on the other side of the political spectrum,to imagine Clarence
Thomasas an earlynineteenthcenturyminimalist;Sunstein'smimimalismis reallynothingmore
than a brief againsthistoricaltransitions),we can see how the idea of minimalismworks as a
clever shell game aimed at institutionalizingthe agenda of mid-twentiethcenturyAmerican
constitutionalliberalism.But see Sunstein, The Partial Constitutionat 68 (cited in note 41)
("Muchof modernconstitutionallaw is basedon statusquo neutrality,and indeedon the understandingsof the pre-New Deal period.").
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A better name for JusticeBreyer'sapproachin these cases would
be the "leasttransparentmeans"test.12'Namely,he permitsthe state to
redefine the purposeof its conductin a way that has the broadestpossible effect, deems that purposenewly "compelling,"and then, in turn,
insists that the means the state uses to achieve that purpose be veiled
from public view.This is not minimalist.It is not transparent.It is not
democratic.And (as I see it) it is not constitutionaleither.
2. Privacy.
Formore than a generationnow,the most heated controversyin all
of constitutionallaw has been about whetherthe Constitutionguarantees a "right[to] privacy."124Although its antecedentsare said to trace
back to a seminal 1890law review articleby SamuelWarrenand Louis
Brandeis,12 the Court counted the "rightto privacy"as a fundamental
constitutionalright only in the mid 1960s in a case striking down a
Connecticutlaw banningthe use of birthcontrol by marriedcouples.126
The right was quicklyexpandedto apply,first,to the use of birth control by unmarriedcouples,and subsequently,to a woman'sdecision to
have an abortion.127These decisions ignited controversy on a broad
arrayof fronts.Politically,the Court'sdecision to declare abortion to
be a national right served as a catalyst for the Right to Life movement. That movement, in turn, played a major role in realigningthe
party loyalties of millions of Americans,with, over time, the Democrats becomingRoe v Wade's128chief champions,and the Republicansits
most ardent critics.129Many have alleged that the Court's decision in
123 For a comparativeperspective,see Sowell,Affirmative
Action at 50-51 (cited in note 86)
("Wherecourts or officials have balked at various double standards,those double standards
have often gone underground,ratherthan going away.Objectivestandardshave been offset by
an increase in non-objectivestandards,used clearly as counterweightsto produce the same
grouprepresentationresultsproducedby explicitdoublestandards.").
124 See, for example,Roe v Wade,410 US 113 (1973) (findinga "rightof privacy... founded
in the FourteenthAmendment'sconceptof personallibertyandrestrictionsupon state action").
125 See SamuelD. Warrenand Louis D. Brandeis,The RightTo Privacy,4 Harv L Rev 193
(1890). But see Ken I. Kersch,ConstructingCivil Liberties57 (Cambridge2004) ("Warrenand
Brandeiscertainlywere strainingtowarda sortof privacyin penningtheirfamousarticle,but the
civil libertarianimplicationsof thatsortof privacywere dubiousat best.").
126 See Griswoldv Connecticut,381 US 479,485-86 (1965) (holdingthat doctorsdispensing
birthcontrolfall withina constitutionallyprotected"zoneof privacy").
127 See Eisenstadtv Baird,405 US 438,443 (1972) (abrogatinga statutebanningthe distribution of birth control by nondoctorson equal protectiongrounds);Roe, 410 US at 152-53
("Thisrightof privacy... is broadenough to encompassa woman'sdecisionwhetheror not to
terminateher pregnancy.").
128 410 US 113 (1973).
129 See Greg D. Adams,Abortion:Evidenceof Issue Evolution,41 Am J Pol Sci 718, 727,
733-35 (1997). See also Ruth Bader Ginsburg,Some Thoughtson Autonomyand Equalityin
Relationto Roe v.Wade,63 NC L Rev 375,381 (1984-85).
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Roe-in conjunctionwith issues of crime,race,the campusrevolts,and
the often anti-American,anti-VietnamWar movement-precipitated
the movement of large swathes of the workingclasses out of the DemocraticPartyand into the armsof the Republicans.1o
The Court'sidentificationof a "rightto privacy"also stirredup a
hornet's nest among constitutionaltheorists.To liberal and conservative theoristsalike,the newly declaredprivacyrightlooked very much
like the sort of nontextual"substantivedue process"rightsthat,it was
thought,had been largelydiscreditedafter the Lochnerera"'-a maniantidemofestation of judicialpower run amok-and paradigmatically
As their divergentviews on Roe came to split the country'stwo
cratic.'32
political parties, appointmentsto the Supreme Court itself came to
turn, in significantpart,on the nominee's position on whether a constitutional right to privacy existed. When one of President Reagan's
nominees to the Court,Robert Bork, franklyrejected the notion that
the Constitutioncontained any "rightto privacy"(Bork had made it
clear that he saw the right,and the ruling,as a new form of Lochnerism),"'it set off a political firestorm,and Bork's appointmentwas re-
130 For a
contemporaneousidentificationof this,see Peter Skerry,The Class Conflictover
Abortion,Pub Int 69,70 (Summer1978) ("Abortionis part of a largerculturalconflictbetween
certainstrataof the upper-middleclass ... and the massof Americanswho comprisethe working
and lower-middleclasses.").See also ThomasFrank,What'sthe MatterwithKansas?:How ConservativesWontheHeartof America199 (Metropolitan2004) ("[Roe]cementedforevera stereotype of liberalismas a doctrineof a tiny clique of experts,an unholycombinationof doctorsand
lawyers,of bureaucratsand professionals,securingtheir 'reforms'by judicialcommandrather
than by democraticconsensus.").The claim that Roe split the workingclass from the uppermiddle class, and drove the former into the RepublicanParty,is now becoming subjectedto
increasingempiricaldispute,however.See, for example,LarryM. Bartels,What'sthe Matterwith
What's the Matterwith Kansas?,Presentedat the Annual Meeting of the AmericanPolitical
ScienceAssociation30 (Sept 1-4, 2005),onlineat http://www.princeton.edu/%7ebartels/kansas.pdf
(visitedApr 4, 2006) ("[T]heresult [of the politicalshift motivatedby Roe] is not (certainlynot
yet) the new 'dominantpolitical coalition' conjured up by Frank and other liberal handwringers.").
131 See Lochnerv New York,198 US 45 (1905) (declaringa state maximum-hours
statute
unconstitutionalunderthe FourteenthAmendment).
132 See JohnHart Ely, TheWagesof CryingWolf A Commenton Roe v.Wade,82 Yale L J
920,920 (1973);Louis B. Boudin,1 Governmentby Judiciaryvi (WilliamGodwin1932) (writing
that "[t]he actual practiceof the courts is to declare any law unconstitutionalof which they
WilliamG. Ross,A MutedFury:Populists,Progressives,and Labor Unions
stronglydisapprove");
Confrontthe Courts,1890-193720 (Princeton1994) ("Whiledecisionssuch as Lochnerv. New
Yorkin 1905 created only limited and temporarysetbacksfor advocatesof reformlegislation,
they became symbolsof judicialintransigenceand providedlightningrods for progressivecriticismof the courts.").In ActiveLiberty,JusticeBreyerhimselfwarnsof the lessonshe has learned
from a studyof the willfulactivistjudgingof the Lochnerera. See p 10 (describingthe Lochner
Court as having "overlyemphasizedthe Constitution'sprotectionof private property"at the
expenseof "thebasicobjectivesof the CivilWaramendments").
133 See, for example,Robert H. Bork, The TemptingofAmerica:The PoliticalSeductionof
the Law 290-91 (Free 1990).
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jected by the Senate.134No nominee to the Court since Bork has ever
been so frank.Today,the SupremeCourt appointmentprocess is, to a
large extent, centered on the question of whether the judge believes
the Constitution contains a right to privacy,and whether the judge
believes that right applies to a woman's decision to terminate her
135
pregnancy.
Justice Breyer's progenitors,Hart and Sacks, never mentioned
the most importantand politicallyconBrown v Board of Education,"6
tentious case of their time, in The Legal Process, though both men
were liberals who supportedthe decision."'And, in his own contemporaryreiterationof their purposive approachto legal interpretation,
Justice Breyer, true to the spirit of the original textbook itself, never
once mentions Roe. This omission is all the more strikingbecause Justice Breyer has specificallyincluded an extended discussionin his applications section on "privacy."He begins that portion of the book,
however, by announcingto his readers that "[b]y privacy,I mean a
person'spower to controlwhat others can come to know about him or
her" (p 66). He then reduces this definitionto questions raised by the
"uncertaintybrought about by rapid changes in technology" (id).
"[M]ostof our privacy-relatedlegal challenges,"he writes,"lie at the
intersectionof a legal circumstanceand a technologicalcircumstance"
(p 67)."138
Needless to say,as a regulatoryscholarwith a longstandinginterest in the relationshipbetween science,technology,and the law,this is
the sort of territoryon which Justice Breyer feels most at home. His
examples here involve the collection of data by businesses to create
detailed customerprofiles,the privacyof medical records,and the interception of cell-phone conversations(pp 69-70). Today,the critical
questionsconcerningprivacy,he tells us, are the following:
134 MortonJ. Horwitz,The Meaningof the Bork Nominationin AmericanConstitutional
History,50 U Pitt L Rev 655, 656 (1989) (citingBork's"positivistattackon modernrightstheory"as the factorthat"eventuallyled to his defeat").
135 See Green,27 Natl L J at 23 (citedin note 16) (listingabortionfirstamongcriticalissues
on whichJohnRobertswas to be evaluatedduringhis confirmationhearings).
136 347 US 483 (1954).See Powe, TheWarrenCourtat 50-51 (cited in note 31) (describing
Brownas creatinga revolutionin doctrineand a crisisin implementation).
137 Eskridgeand Frickey,An Historicaland CriticalIntroductionat cvii (cited in note 26)
("The co-authors'neglect of issues involvingracialjustice not only deprivedtheir materialsof
potentiallyfascinatingproblemsbut madethe processof updatingincreasinglyintractable.").
138 It is, of course,possiblethatBreyerdoes not see abortionas a privacyissue,but ratheras
an issue of personalautonomy(liberty) or equalitythat cannot be explainedfully on privacy
grounds.Nonetheless,he has upheldthe righton privacygroundsas a matterof precedent.See
Stenbergv Carhart,530 US 914,920 (2000) (Breyer)("Weshall not revisitthose legal principles
[set out in Roe].Rather,we applythem to the circumstancesof this case.").
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Should the law require programmingvideo cameras on public
streets to turn off at certain times? When? Should the law require softwarethat instructscomputersto delete certainkinds of
information? Which? Should the law require encrypted cell
phones? Should the law impose upon certain Web sites a requirementthat they permitusers with certainprivacypreferences
to negotiate access-relatedprivacyconditions?How? When will
the softwarebe available(p 70)?
These are all very importantmatters,and are likely to become
even more importantin the future."9But they are distinctivein being
very difficult to discuss other than on fine-tuned empirical grounds
(pp 66-67).140They are essentiallyregulatoryquestions.
Interestingly,it is this cascade of highly technicalregulatoryquestions that spursJusticeBreyer to one of his most spiritedarticulations
of his understandingof the role of the Courtin a democracy."It is difficult even to begin to understandthe legal, technological,and valuebalancingcomplexityinvolved in tryingto resolve the legal aspects of
the personalprivacyproblem,"he writes (p 70):
I cannot offer solutions. But I can suggest how twenty-firstcenturyAmericansgo about findingsolutions....
Ideally,in America,the lawmakingprocessdoes not involve legislators,administrators,or judges imposinglaw from above.Rather,
it involves changes that bubble up from below. Serious complex
legal change is often made in the context of a nationalconversation involving, among others, scientists,engineers, businessmen
and women, the media, along with legislators,judges, and many
ordinarycitizens whose lives the new technologywill affect.That
conversationtakes place throughmeetings,symposia,and discussions, throughjournal articlesand media reports,throughadministrative and legislative hearings,and through court cases. Lawyers participatein this discussion,translatingspecialized knowl139 See, for
example,Jeffrey Rosen, The UnwantedGaze: The Destructionof Privacy in
America7 (RandomHouse 2000) (describinghow advancesin technologymake people's personal lives less secure from intrusions);JeffreyRosen, TotalInformationAwareness,NY Times
El16-17 (Dec 15,2002) (describinga "sweeping"Departmentof Defense effort to "monitorthe
activityof Americans");JeffreyRosen, SiliconValley'sSpy Game,NY TimesF46 (Apr 14,2002)
(describinghow the CIA investedmillionsin dot-comstartupsin order to develop new spying
technologies).
140 See JeffreyRosen, Robertsv. The Future,NY Times sec 6 at 24 (Aug 28, 2005) (noting
the FourthAmendmentproblemsthat new surveillancetechnologymay generate).Although
Breyer mentions the FourthAmendmentin passing on the chapter'slast full page, the lion's
share of the discussionproceedssolely underthe (nontextual)guise of addressing"theprivacyrelatedlegal problem"(pp 66,73).
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edge into ordinary English, defining issues, often creating consensus. Typically administratorsand legislators make decisions
only after the conversationis well underway.Courts participate
later in the process, determining whether, say, the legal result
reached through this "bubblingup" is consistent with basic constitutionalnorms (pp 70-71).
The way this happens, Justice Breyer opines-in a remarkable
characterizationof a process that is akin to a publicpolicy seminar--is
"best described as a form of participatorydemocracy"(p 70). "This
conversation,"he continues,"is the 'tumult,'the 'clamor ... raised on
all sides' that,Tocquevillesaid,'you find yourselfin the midst of when
'you descend ... on the soil of America.'It is the democraticprocessin
action"(p 71). Justice Breyer's argumenthere is that, in a changing
regulatoryenvironmentcharacterizedby complex questions of technological change,judges should be relativelydeferentialto "scientists,
engineers"and others who are in the process of workingout a sensible
regulatoryregime (pp 70-71).141 In this context, it is best to rule narrowly in these cases, "focus[ing]upon the particularcircumstances
present in the case"(p 72). He explains:
The narrownessof the holding itself serves a constitutionalpurpose. The democratic"conversation"about privacyis ongoing.In
those circumstances,a Court decision that mentions its concerns
without creating a binding rule could lead Congress to rewrite
eavesdroppingstatutes,tailoringthem to take account of current
technological facts, such as the widespread availabilityof scanners and the possibility of protectingconversationsthrough encryption.A broader constitutionalrule might itself limit legislative options in ways now unforeseeable(p 72).
Whatever the merits of this approachin this type of case--and
they are considerable-to identify this managed,elite-inflectedopenness with the more unrulyforms of democracyassociatedwith democform, and that Tocquevillewas describingin
racy in its "participatory"
his accountof JacksonianAmerica,is quite an audaciousmove.142
In passages like this,JusticeBreyer betrayshis deep-indeed, his
deepest--intellectual roots in pre-New Deal, early twentieth century
progressivism,an outlook with an animatingfaith in government by
Deexpert, acting as stand-insfor the (uninformed)people at large.143
141 Note that"manyordinarycitizens"come last in Breyer'slist (p 71).
142 See Amar, The Bill of Rights at 88 (cited in note 50) (noting that Tocquevillefound
Americaninstitutions,suchas the jurysystem,to be "fundamentally
populistand majoritarian").
143 See Eldon J.Eisenach,TheLost Promiseof Progressivism46 (Kansas1994) (describing
the authorityof the Progressivesas resting on "the languageof social science, social control,
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spite his appeals to "participatorydemocracy"(p 70), anyone with a
passing familiaritywith the history of democraticpolitics in America
will see much more the "attitude"of ClarkKerr than Tom Hayden in
the "democratic"processas limnedby JusticeBreyer.'"
All of this discussion about the challenges to privacy in a constantly changing technological environment,of course, usefully distracts the reader from the question of the "rightto privacy"as found
by the Court in Roe. This is a good thing, because if Justice Breyer
were to actuallytake that up in his book, where "purposiveness"and
"activeliberty"are the essentialtouchstones,he would be forced to tie
the Court'srulingin Roe to the "purpose"of the Due Process Clause
of the FourteenthAmendment,and to the cause of "participatorydemocracy"(see p 18). In the butterfly-effectworld of contemporary
constitutionalliberalism(as noted in the discussionof JusticeBreyer's
take on racialpreferencesabove), that would be far from impossible.'45
But it would force Justice Breyer to engage nakedly in the sort of
highly creative democratictheorizingthat would be much more difficult for him to conceal than it was for him in the affirmativeaction
[and] systemsof knowledge");Kersch,SyntheticProgressivismat 248 (cited in note 1) (noting
Breyer's"affinitywith rationalist,scientific,antiformalistsystems-regarding
progressivismof the
early twentieth century").See also Karl N. Llewellyn, The Constitutionas an Institution,34
ColumL Rev 1, 22 (1934) (arguingthat constitutional"amendmentoccurstypicallyby actionof
the relevant[administrative]
specialistsalone")(emphasisomitted).
144 See ThePortHuronStatement,in JamesMiller,"DemocracyIs in theStreets":FromPort
Huronto the Siegeof Chicago329,336 (Simonand Schuster1987) (criticizingthose who see the
"nationaldoldrumsas a sign of healthyapprovalof the establishedorder,"and who "thinkthe
nationalquietudeis a necessaryconsequenceof the need for elites to resolvecomplexand specializedproblemsof modernindustrialsociety").See also Miller,"DemocracyIs in the Streets"at
16 (findingthe cruxof earlyNew Left politicsin the PortHuronStatement'sDeweyanvision of
participatorydemocracy).ClarkKerr,the Presidentof the Universityof Californiasystemfrom
1958to 1967,was a liberallaboreconomistand exemplarof the postwar,managerialand technocratic"newadministrativeliberalism"thatwas targetedin The PortHuronStatement.Jeff Lustig
wrote:
For despiteits claimsof opennessand tolerance[it was liberal,andnot conservative],it was,
and remains,ill equippedfor real argumentand debate.It is not set up for such things.It
requiresstandardizedproceduresand coded phrasesfor its operation,and regardsthe acceptanceof such proceduresand newspeakas the preconditionfor its functioning,not the
outcomeof debate.
Jeff Lustig,The Mixed Legacy of ClarkKerr:A PersonalView,90 Academe 51, 52 (July-Aug
2004).Accordingto Lustig,Kerrwas "the chief prophetand ornament"of postwarmanagerialism.As Kerrcame to see, his approachworkedbetter in the consensusfifties than in the subsequent period of fundamentaldisagreement.See id at 51 (notingKerr's"late recognitionof the
growingcrisis"of the free speechmovementat Berkeley).
145 See, for example,Casey,505 US at 844-46 (invalidatinga statuterestrictingabortionby
expansivelyreadingRoe); Ruth Bader Ginsburg,Speakingin a JudicialVoice,67 NYU L Rev
1185,1198-99(1992) (arguingthat"[d]octrinallimbstoo swiftlyshaped... may prove unstable"
and criticizingRoe as one such"limb");Ginsburg,63 NC L Rev at 385 (cited in note 129) ("Roe,
I believe, would have been more acceptableas a judicialdecision if it had not gone beyond a
rulingon the extremestatutebeforethe Court.").
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cases.Here, he simplyputs the purposeto the side,helps himselfto the
maximalistactivismof the late 1960s and early 1970s,in the form of
stare decisis, and decides that (in his "Applications"section on privacy) it is more prudent to turn to something completely different
(pp 73-74).46
III. THE LIMITSOF PURPOSE
In their earlierincarnations,"purposive"legal process approaches
to interpretationof the sort JusticeBreyer seeks to reintroducein Active Libertyhave already been extensively critiqued.In commenting
on Hart and Sacks,Eskridgeand Frickeyhave summarizedthe virtues
and drawbacksof the purposivelegal posture:
The strengthsof the legal process vision were its insistence that
law is accountableto reason and not just fiat, its claim that institutional architectureand procedureare both criticalto law's operation and can be analyzed systematically,and its consideration
of legal doctrinein light of law's purposesand the polity's underlying principles.Its main weaknesses were its polarized categorizations (e.g., substance/procedure),its undue optimismabout the
competence and public-spiritednessof state institutions,and its
failure to recognize the ideological and non-neutralnature of its
own positions.'47
Indeed, the pretense by practitionersof the purposive approach
that they were neutraland nonideologicalprofessionals(forged in the
spirit of the consensus,managerial1950s) was, in its earlier incarnation, critiquedmost extensivelyfrom the Left, by CriticalLegal Scholars,who were shaped by the New Left of the 1960s.148The superimposing of a rhetorical appeal to "active liberty" does not make any of
these criticismsless valid today than they were then.
Although Hart and Sacks said it, today it is Justice Breyer who
argues (adding a few humble caveats to signal our movement beyond
146 See Stenberg,530 US at 929-30 (invalidatingas unconstitutionalon the basis of Roe a
Nebraskastatuterestrictingabortion).
147 Eskridgeand Frickey,An Historicaland CriticalIntroductionat civ (cited in note 26)
(noting that these strengthsand weaknessesreflect the intellectualinfluenceof WarrenCourt
jurisprudence).
148 See Eskridge,Frickey,and Garrett,Casesand Materialson Legislationat 728 (cited in
note 26) ("Criticalscholars argue that legal process judges are making unarticulatedvalue
choices underthe auspicesof neutralcraft.").See also MarkTushnet,Darknesson the Edge of
Town:TheContributions
Theory,89 Yale L J 1037,1038(1980)
of JohnHartEly to Constitutional
(criticizingJohn Hart Ely's new legal process approachas incoherentand destructiveof other
preexistingtheories).
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the unalloyedconfidenceof the liberalheyday of the 1950s) (see p 85)
that:
Because "every statute and every doctrine of unwrittenlaw developed by the decisional process has some kind of purpose or
objective" ambiguities can be objectively and predictably resolved, first by identifyingthat purpose and the policy or principle it embodies and, then, by deducingwhich result is most consistent with that principleor policy.'49
Today,the main challengeto this interpretiveposture,as Eskridge
and Frickeydescribeit, comes from"formalists"like JusticeScalia:
The formalist doctrine was that when interpretinga statute all
the Court is doing is diviningthe historical"will"of the legislature-the answer it "intended"to create the day it passed the
statute.... The legal process insight is that statutes change over
time, and an interpretationwhich might be defensible enough
when made can become severely out-of-placeyears later.There
ought to be greaterjudicial flexibilityto fine-tune its interpretations by looking at related legal developmentsand re-examining
prior decisions.''
The dangerwith this insightis, of course,that judges will take the
part of the processinvolvingthe identificationof purposesand principles, and wield it creativelyand aggressivelyin light of their own ideologies and policy preferences.Eskridge and Frickeynote that a purposive approach to interpretationproved no barrier to the highly
creative and activistjudgingof the Warrenera.They tell us that "[t]he
[Warren]Court seized upon the law-as-purposefeaturesof legal process" and "deemphasiz[ed]the philosophy's attention to rule-of-law
values,proceduralregularity,and the limited institutionalcompetence
of courts" in order to "liberalize [a wide array of areas of law]."'"'
"Mostof these opinions,"they note, "wereextraordinarilydynamicinterpretationsof the statutes they were construing(often going against
as well as beyondoriginallegislativeexpectations)."'52
Positioned as he is in time, as a Justice serving in the Warren
Court'swake, in an era when its legacy has been under sustainedpo149 Eskridgeand Frickey,Casesand Materialson Legislationat 245-46 (cited in note 35)
(describinglegal processtheoryas a purposiveapproachto statutory-but not necessarilyconstitutional-interpretation).
150 Id at 264.
151 EskridgeandFrickey,CriticalIntroductionat cv-cvi (citedin note 26).
152 Id at cvi (noting that"the Hart and Sacksmaterialsprovideda detaileddefense of [the
WarrenCourt's]approachand probablycontributedto its general acceptabilityin the legal
culture").
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805
litical challenge,JusticeBreyer does not need to choose between seizing on the law-as-purposefeatures of legal process and its rule-of-law
values emphasizing stability.He is free to seize on law-as-purpose
themes when he wants to liberalizethe law (see, for example,pp 7879). But, because he is able to drawupon the liberalprecedentsof this
earlier period,and sustainthem, he is freer to appeal to the ostensibly
apolitical "rule of law" and stability themes--including the importance of stare decisis--to sustainthe viabilityof earlier,highly aggressive law-as-purposereadingsmade by the WarrenCourt (see p 119)."'
This position in time permitsJusticeBreyer to be much more attentive
(than JusticeBrennanwas,for example) to the limitsof judicialpower,
the importanceof judicialhumility,and the position of the judiciaryas
only one - and not necessarilythe most important--institutionof government (pp 31-32, 37). In an earlier stage of the New Deal/Warren
Courtliberalconstitutionalregime,JusticeBrennanfelt that it was both
important (and politically plausible) to describe the reform-minded
liberalconstitutionalprojectas a commitmentto "livingconstitutionalism."As the Warrenyears receded into the background,JusticeBrennan was increasinglycalled upon to defend his livingconstitutionalism
againsta set of risingintellectualand politicalchallenges.m'Today,Justice Breyer is essentiallycarryingon JusticeBrennan'slegacy by jettisoning the language of living constitutionalismin favor of a more
-a
process-oriented form of "dynamic constitutional construction"
variantof the purposive,legal process-inspired"dynamic"approachto
statutoryinterpretation,now applied not simplyto statutes,but to the
interpretationof the Constitution itself (pp 118-20). One question
JusticeBreyer'sbook raises is whether the spirit of an ostensibly"living constitutionalism"is any more palatablein this new guise inspired
by theories of proper approachesto statutoryconstructionthan it was
in its previous incarnation."'Justice Breyer's gambit here, looking to
the opportunitiesand limitationsprovided in an increasinglyconservative age, is to changethe nomenclature.
153 See id at civ-cv.
154
See WilliamJ.Brennan,Jr.,TheConstitutionof the UnitedStates:Contemporary
RatificaThe Debateover OriginalIntent23, 33
tion,in JackN. Rakove,ed, Interpretingthe Constitution:
(Northeastern1990) ("[T]heuniqueinterpretiverole of the SupremeCourtwith respectto the
Constitutiondemandssome flexibilitywith respect to the call of stare decisis.");Edwin Meese
the Constitution,
in Rakove,ed, Interpreting
the Constitution13,20 ("[A]nactivist
III,Interpreting
jurisprudence,one whichanchorsthe Constitutiononly in the consciencesof jurists,is a chameleon jurisprudence.");
JackN. Rakove,Mr.Meese,MeetMr.Madison,in Rakove,ed, Interpreting
the Constitution179, 180-81 ("JusticeBrennan... dismissedMr.Meese's 'doctrinaire'position
[on originalintent]as'arrogancecloakedin humility.'").
155 See WilliamN. Eskridge,Jr., Dynamic StatutoryInterpretation,
135 U Pa L Rev 1479,
1481(1987).
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of ChicagoLawReview
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A. Does Active LibertySave Us?
Does Justice Breyer's decision to superimposean appeal to "active liberty" on top of a classic legal process approach to statutory
construction(now transferredto the projectof constitutionalinterpretation) save him from being, fundamentally,just anotherliving constitutionalist?It does not. The way that JusticeBreyer uses the concept
of active liberty in this book differs not at all from the way that the
ProgressiveEra progenitorsof a living,evolving Constitutionthat focused not simply on the protection of rights in their negative form
(which, admittedly,Justice Breyer defends more aggressively than
they did) but on the collective,democraticrightsof the people.
Justice Breyer chooses to call this "active liberty"(p 6). But, at
least as he describesit here, he could just as easily have called it the
"New Freedom[]-a Liberty widened and deepened to match the
broadened life of man in modem America, restoringto him in very
truththe control of his government."'"
That,after all, is whatWoodrow
Wilson called it in his critique of the predominant constitutional
thought of his time (and, prior to runningfor public office, in his sustained attackon the contemporaryrelevanceof the Constitutionitself,
as writtenand understoodby the Founders).157
"Weare in the presence
of a new organizationof society,"he wrote:".
Our life has broken away from the past.... The life of the nation
has grown infinitely varied. It does not centre now upon questions of governmentalstructureor of the distributionof governmental powers. It centres upon questions of the very structure
and operation of society itself, of which governmentis only the
instrument.Our developmenthas run so fast and so far along the
lines sketched in the earlier day of constitutionaldefinition,has
so crossed and interlaced those lines, has piled upon them such
novel structuresof trust and combination,has elaboratedwithin
them a life so manifold, so full of forces which transcend the
boundariesof the countryitself and fill the eyes of the world,that
a new nation seems to have been created which the old formulas
do not fit or afforda vital interpretationof."59
156 WoodrowWilson,TheNew Freedom:A Callfor the Emancipationof the GenerousEnergiesofa People294 (Doubleday1913)(callingthis"NewFreedom"a "deep[er]"freedomthan
that at the Founding).
157 See Haskell, The Emergenceof ProfessionalSocial Science at 252 (cited in note 28)
(noting thatWilsonpremisedTheNew Freedomon ideals of interdependencethat contravened
the LochnerCourt'sfocus on individualrights).
158 Wilson,TheNew Freedomat 3-5 (citedin note 156).
159 Id at 3-5.
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Under these new conditions,it is wrong to overemphasize"negative"or "modern"liberty,Wilson explained:
We used to think in the old-fashioned days when life was very
simple that all that government had to do was to put on a policeman's uniform, and say, "Now don't anybody hurt anybody
else."We used to say that the ideal of governmentwas for every
man to be left alone and not interferedwith, except when he interfered with somebody else; and that the best governmentwas
the governmentthat did as little governingas possible.... But we
are coming now to realize that life is so complicatedthat we are
not dealingwith the old conditions... underwhich we many live,
the conditionswhichwill make it tolerablefor us to live,?'
"Freedomto-day is somethingmore than being let alone,"Wilson
emphasized."Theprogramof a governmentof freedom must in these
days be positive,not negative merely."161
Although speaking specificallyhere of the Declaration of Independence,Wilsonmayjust as well have been speakingof the Constitution itself when he wrote that:
The Declaration of Independence [does] not mention the questions of our day.It is of no consequenceto us unless we can translate its generaltermsinto examplesof the present day and substitute them in some vital way for the examples it itself gives, so
concrete, so intimatelyinvolved in the circumstancesof the day
in which it was conceived and written.It is an eminentlypractical
document,meant for the use of practicalmen.... Unless we can
translateit into the questions of our own day,we are not worthy
of it, we are not the sons of the sires who acted in response to its
challenge.
[W]e are architectsin our time, and our architectsare also engineers.
We could just as easily call what Justice Breyer calls "active liberty" an interpretive approach aimed at fulfilling "The Promise of
American Life." That's what the progressive intellectual Herbert
Croly called it.63To achieve the full promise of America, Croly called
160 Id at 19-20.
161 Id at 284.
162 Id at 48-51 (callingfor citizensto throwoff the yoke of big business).
163 Herbert Croly, The Promise of AmericanLife 1-2 (Macmillan1910) (describingthe
Whiggish"Promise"of the "Landof Democracy").
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on Americans to move beyond their traditionalconstitutionalunderstandings,and their overemphasison negative,private-orientedrights.
Americans,Croly argued,needed to stop thinkingin their usual formalistic categories made for a bygone age, and reconceive of government as a national-levelproblemsolvingendeavor.64
Unlike Breyer, Croly argued openly that thinking about things
this way would be "revolutionary,"
and that his proposalswould "seem
fantastic and obnoxious to the great majorityof Americans,"and involve "a radicaltransformationof the traditionalnational policy and
democratic creed."'65
Because Justice Breyer is a lawyer and a judge,
and not a freelance political and intellectual activist,he cannot say
openly, as Croly does, that "[t]he values placed upon many political
ideas,tendencies,and achievements[thathe advocates]differradically
from the values placed upon them either by their originatorsand partisans or in some cases by the majorityof Americanhistorians."'
"The security of private property and personal liberty, and a
proper distributionof activitybetween the local and the central governments [traditionally]demanded ... and within limits still demand,
adequate legal guarantees,"Croly wrote. "It remains none the less
true, however, that every popular governmentshould in the end, and
after a necessarilyprolongeddeliberation,possess the power of taking
any action, which,in the opinion of a decisive majorityof the people,
is demanded by the public welfare."He added, "Suchis not the case
with the government organized under the Federal Constitution."'67
"[I]t may be," he added, "that the Constitution... is itself partly responsible for some of the existing abuses,evils, and problems"facing
the country.'"Again, as a judge,Breyer cannot add a similarstatement.
And he doesn't.
Like Breyer, Croly appeals to an ideal of democratic"solidarity,"
and popularsovereigntyat the nationallevel. Crolyexplained:
The phrase popular Sovereignty is ... equivalent to the phrase
"national Sovereignty."The people are not Sovereign as individuals.They are not Sovereignin reason and morals even when
united into a majority.They become Sovereign only in so far as
they succeed in reachingand expressinga collectivepurpose.169
16 See id at 274.
165 Idat24-25.
166 Id at 27.
167 Id at 35-36.
168 Id at 137.
169 Id at 280 (noting that "thereis no royal and unimpeachableroad to the attainmentof
such a collectivewill").
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This,for Croly,as for Breyer,is "democracy"(see pp 3, 6).
Constitutionaltheory,as engaged in here by JusticeBreyer (and,
more systematically,by contemporarylegal academics)is an odd endeavor.The task of engagingin ambitiousinterpretationsof the American past, with highly creative appeals to key figures in the American
politicaltraditionsuch as Jefferson,Hamilton,and Lincoln,in discerning the meaningand futuretrajectoryof Americanfreedom,was at one
time the chief provinceof intellectuals,journalists,activists,and candidates for public office.17 Today,we assumethat its leadingpractitioners
will be law professors-and intellectuallyambitiousjudges like Justice
Breyer.Thischangeis closely relatedto the rise of judicialsupremacyas
the sustainingbuttressof WarrenEra constitutionalliberalism.17Ostensible humilityaside,the nature of the appealsJusticeBreyer makes in
ActiveLibertymarkhim as very mucha partof that endeavor.12
B. The Searchfor a LiberalInterpretiveProcessThat"Works"
If the process of judgingis, in part, an effort to find workablesolutions to contemporarypolitical problems, so too is contemporary
constitutionaltheory.Constitutionaltheory,as practicedby contemporary law professors, exists in what we might call a "constitutional
time,"in which distinctive problems ostensibly in need of solutions,
existing within distinctive political regimes, present themselves, and
alteringpolitical circumstancesmakes certainsolutions to those problems appearmore intellectuallyand politicallyplausiblethan others.73
In this book, JusticeBreyer alludes to the active liberty bona fides of
the New Deal/WarrenEra liberal political regime (pp 10-11)."' He
was appointedto the Court,however,by a Democraticpresidentduring a Republicanera, in which that form of liberalismwas-and had
170 See id at 28-29.
171 See Powe,TheWarrenCourtat 485-86 (citedin note 31).
172 See Keith E. Whittington,"To SupportThis Constitution":
JudicialSupremacyin the
TwentiethCentury,in Mark A. Graber and Michael Perhac, eds, Marburyversus Madison:
Documentsand Commentary101,120 (CQ 2002).
173 See Kersch,ConstructingCivilLibertiesat 1 (cited in note 125).See also id at 1-27 (describing"thepathsof constitutionaldevelopment"throughthe 1960sand 1970s).
174 Recent work emphasizingthe relationshipbetween the SupremeCourt,constitutional
law,and the ambientpoliticalregimeincludesPowe, The WarrenCourtat xiii (cited in note 31);
MarkTushnet,TheSupremeCourtand the NationalPoliticalOrder:Collaborationand Confrontation,in Kahnand Kersch,eds, The SupremeCourt(cited in note 121);HowardGillman,Party
in Kahnand
Politicsand ConstitutionalChange:ThePoliticalOriginsof LiberalJudicialActivism,
Kersch,eds, TheSupremeCourt(cited in note 121);CornellW.Claytonand J.MitchellPickerill,
GuessWhatHappenedon the Wayto Revolution?:Precursorsto the SupremeCourt'sFederalism
Revolution,34 Publius85,87 (Summer2004).
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long been-under challenge."'This was true both as a general matter
and as a matterof constitutionalinterpretation.The RepublicanParty,
and the Reagan Revolution,rose to power in part throughmountinga
sustained criticismof the WarrenCourt and its activistjudges,who, it
was argued, acted as if they were writing a constitution rather than
interpretingone.17 Before the legal academyhad fully assimilatedthe
reality of Republicanrule,many constitutionaltheoristswere content
to argue blissfullythat the Constitution'smeaningwas radicallyindeterminate.Noninterpretivistsexplained that, in approachingconstitutional questions,judges were not in any real way tied to the provisions
of the constitutionaltext."77Some continued to argue that, in light of
this, the text should be interpretedin a way that transformedsociety
in a radically egalitariandirection. Rejecting originalism,and often
textualism, others celebrated the Constitution as a "living" document."1By the time JusticeBreyer was appointedto the Courtin 1994,
by a "triangulating"President seeking the "thirdway" to return the
Democrats to power,however,the legal academyhad belatedlybegun
to assimilate the reality of an altered political context, and these approaches-at least in their less cautious forms-were understood to
be a weak grounding,in this altered context, on which to sustain(and,
perhaps,develop) New Deal and WarrenCourt liberalism,in the face
of sustainedpolitical challenge.'79Since that time, constitutionalliberals have set themselvesto the task of buildingnew foundationsto sustain this beleagueredpoliticalregime."o
Broadly speaking, there have been several contenders for preeminence in this problemsolvingendeavor.The firstjoins conservative
originalismby veneratingthe Founders.But it then goes on, as many
conservative originalistsdo not, to take up the whole of American
history sequentially,multiplying the number of "foundings"in the
American constitutionaltradition,and arguingthat the contemporary
SupremeCourtmust interpretthe Constitutionin light of some sort of
175 See Kersch,SyntheticProgressivismat 241 (cited in note 1) ("Breyer'snominationcame
in the immediatewake of a successionof bitter politicalstrugglesbetween ideologicallypolarized politicalparties.").
176 See Kersch,ConstructingCivil Libertiesat 7 (cited in note 125) (describinghow the
ReaganRevolutionchallenged"statistliberalism"in the federaljudiciary,amongotherplaces).
177 See, for example,ThomasGrey,Do WeHave an UnwrittenConstitution?27 Stan L Rev
703,705 (1975);MichaelPerry,TheConstitution,the Courts,and HumanRights(Yale 1982).See
also Ely,Democracyand Distrust73-75 (citedin note 39).
178 See Horwitz,TheWarrenCourtat 112-13 (cited in note 17) (describingthreadsof Warren Court"activism"that survivedinto the BurgerandRehnquisteras).
179 See Kersch,SyntheticProgressivismat 241 (cited in note 1) (positingthat this political
climatemade Breyera viablenominationfor Clintonto make).
180 See, for example,Sunstein,One Caseat a Timeat xi (cited in note 12) (disavowing"theory"in favorof "closeencounterswith particularcases"wheninterpretingthe Constitution).
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synthesis of these multiple foundings,which are tied to the theme of
democracy as an expression (like the original Founding) of popular
sovereignty as exercised by "We the People."1''Akhil Amar's version
of this approachforges a second line of commonalitywith conservatives by supplementingits originalismwith a consistenttextualism.In
his firstbook-lengthiteration,Amar emphasizedwhat were essentially
two foundings:one in 1789 and one brought about by the Civil War
Amendments.182 As he has recentlydevelopedthis,while still placingthe
lion's share of the emphasis on these two foundings,he reinforceda
constitutionaltext by a focus on
theme of an ever-more-democratizing
the subsequentadditionof the ProgressiveEra and Kennedy-Johnson
Era amendments."'
BruceAckerman'sversionof this approachemphasizes the same first two foundings as Amar, but adds a nontextual
third Foundingto the mix-that of FranklinRoosevelt's New Deal."4
We might call these theorists"multipleoriginsoriginalists."
A second major category of argumentson behalf of sustaining
(and,perhaps,expanding)New Deal and WarrenCourt liberalismin a
conservativepolitical and constitutionalage are those groundedin socalled "welfare"or "positive rights" constitutionalism.These scholars-who are also (in their way) originalists--have argued for a
sweeping scope of governmentalpowers (and, indeed, governmental
duties and responsibilities)to pursue (and enforce) the collective social good in the face of countervailing,more "formalistic"arguments
181 See Bruce Ackerman,1 We the People:Foundations5 (Belknap 1991) (urgingthat "a
rediscoveredConstitution[be] the subjectof an ongoingdialogueamongstscholars,profession418-19 (Belknap
als, and people at large");BruceAckerman,2 Wethe People:Transformations
Bruce
1991) (urgingjudges to abandonpure legal realismfor a more principledjurisprudence);
Ackerman,TheFailureof the FoundingFathers:Jefferson,Marshall,and the Rise of Presidential
Democracy3 (Belknap2005).
182 See Amar, TheBill of Rightsat xii-xiii (cited in note 50) (arguingthat each "founding"
dictatesa differentmode of constitutionalinterpretation).
183 See id at xv (elaboratinga theory of the Founders'understandingof the Bill of Rights
and examiningthe effects of the FourteenthAmendmenton the Bill);Amar,America'sConstitution at 433 (citedin note 17) (findingconstitutionalchangeduringthe ProgressiveEra,the Great
years"that increasedindividuals'"rightsof
Depression,and the "Kennedy-Johnson-Vietnam
democraticparticipation").
184 See Ackerman,2 Wethe People:Foundationsat 6-7 (cited in note 181) (arguingthat the
Constitutionprovidesfor two levels of lawmaking,a lowerlevel comprisedof the threebranches
of governmentand a higherlevel comprisedof the people actingas a deliberativebody). In his
latest book, Ackerman-apoplectic,it seems,over any constitutionalsystem that could lead to
the election of George W. Bush-seems considerablyless enamoredof the eighteenth-century
Founders.He has also added the election of 1800 as, in effect, a new constitutionalmoment.
Ackerman,The Failureof the FoundingFathersat 247-49 (cited in note 181) ("Wehave never
recoveredfrom the early republic'sfailure [in 1800] to undertakea thoroughgoingredesignof
presidentialselection.").
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about textuallystipulatedpowers and their limitations.'8Welfareconstitutionaliststypicallyemphasizethe Constitution'scharacteras a charAs was the case
ter of not only "negative"but also of "positive"rights.'86
with multipleoriginsoriginalism,welfareor positiverightsconstitutionalism comes in more- and less-textualistversions.The more-textualist
welfare constitutionalists,like Sotirios Barber, derive their understandingsfrom readings of the Constitution'sbroadly worded provisions,like the Preamble,and its assertionthat the text was designed to
"promotethe general welfare"(along with similarstatementsfrom an
array of Founders and subsequent touchstone figures acceptable to
conservatives,such as Abraham Lincoln-but not Franklin Roosevelt)." Barber argues that the particularprovisions of the Constitution must be interpretedin light of the document'soverarchingobjective, which is to promote "the generalWelfare"or to advancethe collective public good.'"Other welfare constitutionalists,like Cass Sunstein, are less fully textualistin placing emphasison the (nontextual)
New Deal transformation.Sunstein, for example, has argued for a
positive rightsvision by appealingto FDR's "FourFreedoms"speech
as a significantconstitutionaltouchstone.'89In a relativelycreative bid
to turn constitutionalreasoning in a new (or old) direction for the
twenty-firstcentury,some welfare constitutionalists-including Sunstein-have added a "globalist"argument to increase its appeal to
liberals, who tend to see the United States, and its underdeveloped
welfare state, as perpetuallylaggingbehind the welfare states of Western Europe. Sunstein specificallylinked FDR's positive rights vision
to an understandingof a just political order simultaneouslybeing developed in European social welfare states and elaboratedin interna185 See SotiriosA. Barber,Welfareand the Constitution1-2 (Princeton2003) (advocating"a
forthrightlysubstantivetheoryof 'the generalwelfare"').
186 See id at xiv.
187 See id at 3 (citingLincoln'sstatementthat governmentshould"elevatethe conditionof
men").
188 See id at 1 (arguingthat the recognitionof positive rightscomprisesa criticalpart of
constitutionalfidelity).See also StephenHolmes and CassR. Sunstein,The Costof Rights:Why
LibertyDependson Taxes15 (Norton1999) ("Whenstructuredconstitutionallyand made (relativelyspeaking)democraticallyresponsive,governmentis an indispensabledevice for mobilizing
and channelingeffectivelythe diffuseresourcesof the community.").
189 See generallyCassR. Sunstein,TheSecondBill of Rights:FDR's UnfinishedRevolution
and WhyWeNeed It More than Ever (Basic 2004).The bcte noire of "positiverights"constitutionalistsis less Lochnerv New Yorkthan the RehnquistCourt'sdecisionin DeShaneyv Winnebago CountyDepartmentof SocialServices,489 US 189 (1989) (holdinga countynot liable to a
boy repeatedlybeaten by his fatherwhen county social serviceprovidersknew of the beatings
but failed to respond),whichis anathematizedin this literature.See also Ruth Bader Ginsburg
and Deborah Jones Merritt,AffirmativeAction:An InternationalHuman RightsDialogue,21
CardozoL Rev 253,256-57 (1999)("[Not]all will shareequally,but ... there are minimumlevels
of employment,education,and subsistenceall shouldhave.").
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The appeal of this turn has been entional treaties and declarations.'"
hanced only in recent years,as the Democrats have argued on behalf
of a revived multilateralismin the face of the ostensibly disastrous
"unilateralism"of the much despisedBush Administration.'9'
A third category of argumentson behalf of preservingconstitutional liberalism(but not expandingit) are argumentsfor minimalism
and judicial restraint,most prominently advanced by Sunstein and
discussed above.This approach,of course, appropriatesnot conservative originalism,but rather the conservative critique of the Warren
Court'sjudicial activismwith the aim of preservingthe outcomes arrived at by that activismby restraint.92Needless to say,Active Liberty
will strikemany liberalconstitutionaltheoristsas a brilliant,shortsynthesis of many of these themes, and, as such, as a possible answer to
justices like Thomasand Scalia,and a plausiblehope for the future of
constitutionalliberalism.
C. How DemocraticIs JusticeBreyer?
It is becomingsomethingof a rallyingcry for liberals,in response
to conservativescomplainingabout liberal activistjudges,that Justice
Breyer is actually the most restrained,and, by implication,the most
democraticjustice on the SupremeCourt.'93
Although a much-alludedto op-ed in the New YorkTimesreportedthis,it may neverthelessnot
be true. But we can at least meet the Timesop-ed half way and concede that JusticeBreyer was at least near the middle of the Rehnquist
Courtin this score:he is clearly no WilliamBrennan,a frankideologically liberaldefenderof a highly aggressiveCourt.
For many of these desperate liberals,this book will arrivein the
nick of time. In it, JusticeBreyer--positioning himself against"activist"conservativeslike ClarenceThomasand Antonin Scalia--explains
at length how he came to believe in judicialrestraint,and his core con-
190 Sunstein,TheSecondBill of Rightsat 129-30 (cited in note 189) (notingthat European
"self-styledsocialistmovementshave often not been radical"but instead"in line with ... the
[American]politicalleft").
191 See Ken I. Kersch,Multilateralism
Comes to the Courts,Pub Int 3, 4-5 (Winter2004)
represents"a vast and ongoing intellectual
(arguingthat the Court'suse of "multilateralism"
project"to internationalizethe Constitution).
192 See Sunstein,One Caseat a Timeat 4-5 (cited in note 12) (describing"judicialminimalism"as stayingclose to precedentwithouthewingtoo closely to its weight).On David Souteras
embodyingthis Harlan-esqueapproach,see TinsleyE. Yarbrough,David HackettSouter:TraditionalRepublicanon the RehnquistCourt130 (Oxford2005).
193 See Gewirtzand Golder,So WhoAre theActivists?,NY Times at A19 (cited in note 6)
(allegingthat Breyerinvalidatesless than three-quartersas manystatutesas the next most "activist"judge).
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victions about the centralityof democracyto the American political
tradition.
But for anyone who has read through the corpus of Justice
Breyer'swork-and the substantiveand theoreticalmattersthat seem
(before this book) to most spark his interest-his bid in the past few
years to seize the mantleof "thepeople themselves"will seem veryodd
indeed.94For JusticeBreyeris, at heart,not a tribuneof the people,but
a mandarin:he is self-evidentlymost at home (and most illuminating)
when parsing arcane scientific and regulatoryquestions,especially in
the company of academics,scientists,bureaucrats,and (transnational)
judicialand regulatoryelites (see, for example,pp 85-101).
Statisticallyspeaking,and given the distinctivesorts of statutory
provisionsthat happen to have come before the Court in the past fifteen years,Justice Breyer may be less likely to void a federal statute
than JusticesThomas and Scalia.We might say that this "proves"that
today's judicial liberals like Breyer are the country'strue democrats.
But recent empiricalwork on the Court has shown that this incessant
back and forth in the law reviews about whether liberalsor conservatives are the "true"believersin judicialrestraintis somethingof a parlor game. Both liberals and conservativeshave evinced skewed affinities vis-a-vistheir ideologicaladversariesfor voidingfederal (and state)
laws on constitutionalgroundsin different historicalperiods.'95Moreover, politicalscientistChristopherZorn has shown that "the more extreme the Court'saggregateideology-either liberalor conservativethe more willingit is to strikedownacts of Congress."'
The rather simple equations between statisticsof this sort and a
commitmentto "democracy"that remainsin common currencytoday
were forged in the late nineteenth and early twentiethcenturieswhen
the Court'sdecision to void a large numberof federal (and state) laws,
such as minimum-wageand maximum-hourslaws, stood at the very
heart of the politics of its day (see pp 10-11). This was the period in
which scholarslike JamesBradleyThayerwere able to argue that the
decision by the Court to void a law on constitutionalgroundsoutside
of very clear cases representeda serious affrontto democracy.In that
time, and in that context, that argumentwas quite plausible and, to
194 See LarryKramer,The People Themselves:PopularConstitutionalism
and JudicialReview 8 (Oxford2004) (discerninga "popularconstitutionalism"
"overmost of Americanhistory"
that gave "[f]inalinterpretiveauthority[to] the people themselves")(internalquotationmarks
omitted).
195 See Sunstein,Radicalsin Robes at xii-xiii (cited in note 89) (describingfour different
traditionsin judicialdecisionmakingand aligningeach traditionwith particularpoliticalideologies and time periods).
196 ChristopherZorn, LiberalJusticesat 4 (cited in note 6) (noting peaks of "activism"
duringthe WarrenandRehnquistCourts).
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many, understandablyconvincing.19 As Justice Breyer explicitly acknowledges, however, in a post-Carolene Products,198post-Warren
Courtera, we no longer,in the last analysis,assessjudges by their willingness,except in the clearest of cases,to defer to legislatures(p 101).
We insist, rather,that they defer where deference is appropriate,and
not defer where it isn't (id). JusticeBreyer argueshere that he is being
democratic-that he looks to active liberty-both when he votes to
void statutes, and when he does not (pp 98-99). The test, then, is
whetherhe was rightto do so in either case.
Active Libertydoes not reallycontainthe sort of rigorousanalysis
from principle-leading to precise results in concrete cases about
when a law should be voided and when it should not-that we find in
Rather,Breyer uses concrete examfully developed scholarlyworks.'99
ples illustrativleyin this book.As such,the book comes acrossin many
respects as a brief for an "attitude"or a "mood"with which to confront the interpretationof legal texts (pp 18-19). It seems to me that
JusticeBreyer is really only as democraticin attitude as the statistics
about his willingnessto defer to the legislative branch (and administrative agencies) suggest.Key aspects of the substanceof his thought
reinforcehis status as our nation'sleadingjurisprudentialmandarin.
General readers,I think, will sense this right away the moment
JusticeBreyerbegins discussinghis applications,which (and very much
in contrastto JusticeScalia'sessay in A Matterof Interpretation?)will
come across,in choice of topics to be studiedand in style of exposition,
197 See JamesB. Thayer,The Originand Scope of theAmericanDoctrineof Constitutional
Law, 7 Harv L Rev 129, 132 (1893) (noting that even soon after Marbury,judicialreview"was
not universallyassentedto");Boudin,Governmentby Judiciaryat 24 (cited in note 132) (claiming that if the courts have judicial review,a power "implied"by the Constitution,Congress
shouldalso be able to claimexpansive,implicitpowers).See also Ross,A MutedFuryat 1 (cited
in note 132) ("Between1890 and 1937,populists,progressives,and laborleaderssubjectedboth
state and federal courts to vigorousand persistentcriticismand proposednumerousplans to
abridgejudicialpower.").
198 UnitedStatesv CaroleneProductsCo, 304 US 144 (1938) (expandingthe Commerce
Clauseto coverdairyproduction).
199 See Ely,Democracyand Distrustat 181 (cited in note 39) ("elaborat[ing]a representation-reinforcingtheory of judicial review"that representsonly one possible solution among
many).But see Bickel, TheLeastDangerousBranchat 244 (cited in note 39) ("I have suggested
that principle
that the rule of principlein our society is neitherprecipitatenor uncompromising,
to
is
that
but
not
a
universal
universal
be
a
constraint,
leeway provided expediency
guide
may
along the path to, and alongsidethe path of, principle.");Ronald Dworkin,TakingRightsSeriously xiv (Harvard1978)("Itis no partof my theory... that any mechanicalprocedureexistsfor
demonstratingwhat political rights,either backgroundor legal, a particularindividualhas....
[T]hereare hardcases,both in politicsand law,in whichreasonablelawyerswill disagreeabout
rights,andneitherwill have availableany argumentthatmustnecessarilyconvincethe other.").
200 Antonin Scalia, Common-LawCourtsin a Civil-LawSystem:The Role of the United
the Constitutionand Laws,in Amy Gutmann,ed, A Matterof
StatesFederalCourtsin Interpreting
3, 44-47 (Princeton1997).
Interpretation
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as highly technocraticand dry. General readers looking over Justice
Breyer's shoulder as he thinks through legal cases will begin to suspect rather quicklythat his real devotion is less to the people, in any
broad sense, than to high-levelconversationsand consultationstaking
place among policy intellectuals(see, for example,pp 102-08). There
are very strongpremonitionsof this throughoutthe broadercorpusof
his work. Breyer first came to academic prominenceby arguingthat
the people are not particularlyrational in the way that they think
about risk, and, accordingly,that decisions about risk regulation are
best placed in the hands of administrativeexperts (as they are, he
noted, in continentalEuropean social welfare states).201JusticeBreyer
is also the Court's most sophisticated and influential proponent of
greatertransnationalconsultationamongstthe world'sjudges-a consultation that he has encouragedwith a hope that internationalcontact will provide judges ruling within their domestic constitutional
systems with the knowledge and empiricaldata they need to solve the
problemsat home raisedby statutoryand constitutionalquestions.202
It is notable that Breyer barely discusses his "comparativist"inclinations in Active Libertybecause, elsewhere, he has described the
move by American lawyers and judges in a "comparativist"direction
as representing"a modem revolution in the law."Indeed, in an effort
to situate this "modernrevolution,"Breyer has asked that we "think
of the MarshallCourt [andissues of] constitutionalstructure;the Warren Court and the protection of fundamentalhuman liberty;Labor
law in the 1930s and again in the 1960s;Civil procedureand the Federal Rules. [Then] think of ... the role of judges in a globalized legal
system."A key part of this revolution will involve an aggressive"interchangeof substantivelegal views,not simplyamong academicsand
practitioners,but also among judges from the courts of different nations."203The typicallyunderstatedJusticeBreyer,the judicialminimalist, seems quite excited by the prospectof this interchange.Indeed,he
has ended severalspeeches on this topic with these words:
[W]hat could be more exciting for an academic,practitioner,or
judge, than the "global"legal enterprise that is now upon us?
Wordsworth'swords,written about the FrenchRevolution,will, I
201 See StephenBreyer,Breakingthe ViciousCircle:TowardEffectiveRisk Regulation5556, 70 (Harvard1993)(describing"theregulatorylink"as the problemin informingthe publicof
risks,andcitingFranceas a countrythat has a "powerfulcoordinatingmechanism[]").
202 See, for example,Kersch,SyntheticProgressivismat 266 (cited in note 1) (describing
Breyer'sjudicialphilosophyas "thejurisprudential
adjunctto... elite progressiveglobalism").
203 Breyer, KeynoteAddress,Symposiumon Democracy (cited in note 14) (noting that
judges "increasinglyturnto the experienceof other nationswhen decidingdifficultopen questions of substantivelaw").
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hope, still ring true: "Bliss was it in that dawn to be alive/
But to be young was very heaven."'"2
How are we to reconcilethis outsizedenthusiasmfor transnational
consultationwith JusticeBreyer'sprofile as an unassumingand measuredminimalist?The key is that,as he sees it, this impendingrevolution
represents the prospect that the "national conversation involving,
amongothers,scientists,engineers,businessmenand women,the media,
along with legislators,judges,and many ordinarycitizens"that Justice
Breyer defended in Active Libertyas the essence of "participatorydemocracy... bubbl[ing]up from below"(p 70-71) is on the verge of being taken up at the worldwidelevel. If this is right,we would do very
well to stop and reflect about what it says about JusticeBreyer's democratic"attitude"(p 19).To be sure,in this vision"noweveryone,or at
least potentiallyeveryone,is [ ] seen as a participantin the collective
This may seem democratic,until we realize
decision-makingprocess."205
that there is no essential link in it between this conversationand the
polity itself:it is a conversationamongstproblemsolvers-more on the
model of a seminarthan a demos.206
Active Libertycontainsa few tantalizing-but subtle-gestures towards this expanding"global conversation"-though Breyer is much
more explicitabout these things elsewhere.One such gesture-lest we
overlookwhat is in plain view-is Breyer'sdecisionto anchorhis jurisprudentialvision in the thoughtof a Frenchman(pp 3-5). Another,as
mentionedabove,is his appealto principlesof fraternit6in the affirmative actionexample.Yet anotheris his ratherodd decisionto describethe
Americanconstitutionalsystemseveraltimes in Active Libertyas a system of "delegateddemocracy"(pp 23, 24, 85). Because by this he seems
prettyclearlyto mean what ordinaryAmericanscall "representativedemocracy,"one explanationfor adoptingthis locutionmightbe to afford
him an opportunityto extenda handin friendship(withthe hope of fruitful furtherdialogue?)to the Chief Justiceof the IsraeliSupremeCourt,
AharonBarak,who has himselfprominentlyemployedthatlocution.207
204 Id (contending"thatthere is more than a generation'sworth of fundamentallegal and
institutionalworkto be done").
205 Martin
Shapiro,AdministrativeLaw Unbounded:Reflectionson Governmentand Governance,8 Ind J Global Legal Stud 369, 369 (2001) ("Thischangein vocabulary[from'government' to 'governance']announcesa significanterosion of the boundariesseparatingwhat lies
insidea government... andwhatlies outside.").
206 See id at 369-70(listingthewidearrayof specialinterestgroupsthatparticipate
in contempoandnongovernmental").
betweengovernmental
rarygovernanceandblur"theverydistinction
207 JusticeBreyer cites Barak twice in this book (see pp 139 n 2, 146 n 1). Like Breyer,
has also recentlypublisheda book advocatinga "purposive"approachto the
Barak,significantly,
interpretationof legal texts. See generally Aharon Barak, Purposive Interpretationin Law
(Princeton2005) (SariBashi,trans).
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But JusticeBreyer'sdecision to adopt a focus on "delegation"as
opposed to "representation"is potentiallyof even deeper conceptual
significancethan that.The cognoscenti will recognize that the preference for conceptualizingan increasingarrayof dynamicsas involving
"delegation"as opposed to "representation"is one of the touchstones
of the movement by contemporary cosmopolitan academics away
from discussing"governments"in preference for discussing"governance."208
A choice to turn to delegation over representation,of course,
retains the functionalaspect of the relationshipbetween principaland
agent, while severing the connection between that relationship and
Indeed,JusticeBreyer
any normativeclaim to democraticlegitimacy.2"9
himself seems to acknowledge this.210 Partisansof governance argue
208
See Gerry Stoker, Governanceas Theory:Five Propositions,155 Intl Soc Sci J 17, 19
(1998) (noting that "governance"refers to a broaderweb of institutionalactors);Shapiro,AdministrativeLaw Unbounded,8 Ind J Global Legal Stud at 369-70 (cited in note 205) (arguing
that participationin the governmentaldecisionmakingprocessis broad and crosses traditional
publicand privatelines).
209 See Stoker, Governanceas Theoryat 21 (cited in note 208) ("Governancelacks the
simplifyinglegitimating'myths'of traditional[constitutional]perspectives,such as the British
WestminsterModel.").On delegationgenerally,see Alberto Alesina and GuidoTabellini,Why
Do PoliticiansDelegate?2-3 (HarvardInstituteof EconomicResearchDiscussionPaper 2079,
(visited Apr 4,
July 2005), online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=764430
2006) (enumeratingthree situationsin which elected politiciansshouldwant to delegate to administrativebureaucrats).Justice Ginsburg'snomenclaturehas also been affected by global
dynamicsin odd but subtle ways.In her appeal to internationalstandardsin Grutter,Ginsburg
(or someoneworkingfor her),possiblyinadvertently,slippeda foreignlocutioninto the opinion,
writing that a race-consciouseffort of the sort adopted by the Universityof MichiganLaw
School"accordswith the internationalunderstandingof the office of affirmativeaction."539 US
at 344 (Ginsburgconcurring)(citing the InternationalConventionon the Eliminationof All
Forms of Racial Discrimination,which endorses positive means to end discrimination).In a
subsequentspeech in which she quoted this portionof her opinionin Grutter,she replacedthe
foreign idiom ("the internationalunderstandingof the office of affirmativeaction")with "the
internationalunderstandingof the [purposeand propriety]of affirmativeaction"(the brackets
are hers).Readerswill note that she substitutedan approachsimilarto JusticeBreyer'sfocus on
purposesand consequencesfor the foreign locution.Ruth Bader Ginsburg,Speech, "ADecent
Respectto the Opinionsof [Human]Kind":TheValueof a ComparativePerspectivein ConstitutionalAdjudication(Apr 1, 2005),online at http://www.asil.org/events/AM05/ginsburg050401.html
(visitedApr 4, 2006) (using Grutteras an example of the Court's"attentivenessto legal developmentsin the rest of the world").
210 In his debatewithAntoninScaliaon the SupremeCourt'scitationof foreignprecedents
and practices,Breyerobserved:"It'ssometimesvery hardfor-say for Europeans,to understand
why Americanssometimes react negatively,so negatively to the thought that some foreign
judgeswouldbe able to tell Americanswhat to do.... [T]hereis somethingdeep in this reaction,
and not entirelybad.And it comes back to our being a democracy."
ConstitutionalRelevanceof
ForeignCourtDecisions,Transcriptof DiscussionbetweenU.S.SupremeCourtJusticesAntonin
Scaliaand StephenBreyer,AmericanUniversityWashingtonCollegeof Law(Jan13,2005),online
at http://domino.american.edu/AU/media/mediarel.nsf/1D265343BDC2189785256B810071F238/
(visited Apr 4, 2006) ("At bottom,
1F2F7DC4757FD01E85256F890068E6E0?OpenDocument
there is reflecteda very strongAmericanbelief that all power has to flow from the people and
we have to maintaina check.That'sa good thing.").
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JusticeBreyer'sMandarinLiberty
819
that to improve our
is, to solve our problems--we
governance--that
and authorityin the place most conduciveto
need to lodge the power
yielding the right solution.21And who "we"is doesn't really matter all
that much.What matters,ultimately,is that there is "governance,"and
that the problemgets solved.
What are we to make of all this? Well, in Active Liberty,Justice
Breyer certainly avoids the snare for judges identified by Justice
Brandeis,that "we must be ever on our guard,lest we erect our prejuIt is far from clear,however,that the crux
dices into legal principles."212
of the problem is avoided by enacting prejudicesinstead into a set of
stipulated "purposes"and "objectives"informed by extensive, and
transnational,consultationwith members of an elite political class.13
The one function that a focus on purposes and objectives serves,
though, is-as the affirmativeaction illustrationmakes clear-to obscure these prejudices behind a cloud of empirical policy-speak (in
which Justice Breyer, who rarely simply defers to legislatures and
agencies without "undertak[ing]a detailed reevaluationand reweighing of the factorsthat produced[another'sjudgment],"is proficient).214
Let's be clear:JusticeBreyer'sunderstandingof regulatorypolicy
and administrativelaw still probablybests any currentmember of the
SupremeCourt.But his efforts to startfrom that thinkingand forge it
into a palatable"attitude"towardsconstitutionalinterpretationfail to
convince.There is too much of the spiritof the elite regulator--with a
new, governance-beyond-borderstwist-in Justice Breyer the consti211 See Stoker,Governanceas Theoryat 21 (cited in note 208) ("Thegovernanceperspec-
tive [entails]a steppingback of the state and a concernto push responsibilitiesonto the private
andvoluntarysectorsand,morebroadly,the citizen.").
212 New StateIce Co v Liebmann,285 US 262,311 (1932).
213 For an apt criticismof the way thatJusticeBreyer'sprejudices,obscuredby the language
of "purposes"and "consequences,"
trumpethis ostensiblecommitmentto policy experimenta536 US 639 (2002),see RichardA.
tion in the school voucherscase, Zelmanv Simmons-Harris,
Posner,A PoliticalCourt,119 Harv L Rev 31, 90-92, 99-102 (2005). See also, for example,pp
120-22. JusticeBreyer gave a remarkabledescriptionof how law is created in his debate with
JusticeScaliaat AmericanUniversity:
[L]awis not really handed down from on high, even from the SupremeCourt.Rather,it
emerges.And we're part of it, the clerks are part of it, but only part.And what really survives every time is the result, I tend to think of a conversation[:a] conversationamong
judges,among professors,among law students,among membersof the bar, because you
need people to put thingstogether,you need people to decidecases,you need people to tell
you how it worksout in practice.And out of this giant,messy,unbelievablymessyconversation emergeslaw.
Relevanceof ForeignCourtDecisions(cited in note 210).
Constitutional
214 See LillianR. BeVier, The FirstAmendmenton the Tracks:ShouldJusticeBreyerBe at
the Switch?,89 Minn L Rev 1280, 1312 (2005) (claimingthat "JusticeBreyer'sproportionality
approachappearson its face to be the opposite of a genuine commitmentto defer to other
branches").
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tutionalist.Part of that elitist spirit consists of failing to recognize the
deep nature of the ideological assumptions,be they in mattersof substance or process, upon which his ostensibly purely technical judgments and proceduralaffinitiesseem to rest.Appeals to a vague rhetoric of "activeliberty"or "participatorydemocracy,"in the end, do not
concealthis spirit.
Appeals to findingcommonsensicalor "sound"resultswhen faced
with practicalproblems,and appealsto the problemsolvingpayoffs(and
the authority)of colloquiesamongstpolicyprofessionals,are most convincing in eras,and in areas,where there are few ideologicaldivisions,
and the main problemsof law are taken to be technicalproblems.We
do not live in such an era.215
JusticeBreyer'scommonsensepragmatism
is suffused,self-evidently,by currentpolitical conditions,with a manifestly liberal(and cosmopolitanliberal)ideology.
To date, Justice Scalia has been the most effective Justice on the
Court at unmasking the ideological assumptions of the Supreme
Court'sliberals,JusticeBreyer included.Given that Scalia and Breyer
both relish a lively intellectualgive and take,we might assumethat the
intellectual challenge to the plausibilityof JusticeBreyer's purposive
and consequentialistpragmatismis most likely to continue to come
from JusticeScalia.216
One wonders,however, if the next step in the deconstructionof
constitutional liberalism as a political ideology may come less from
the more (and more uniformly)categorical,rules-basedconservatives
than from conservatives like Chief Justice John Roberts, and (perhaps) Justice Samuel Alito. Justice Scalia doubtless will continue to
unmask liberal political ideology wherever he finds it and hoist the
banner of a hard-edgedconstitutionaloriginalism.But, althoughthey
will no doubt side with JusticesScalia and Thomas in many disputes,
JusticesRoberts andAlito -so far as we can tell at this relativelyearly
stage of their careerson the SupremeCourt-are also, in their general
approach,nonformalistand nonoriginalisteclectic pluralists.It is quite
likely that, in cases where they find it appropriate,they will also end
up reasoning,to a fair extent, from purposes and consequences.They
are likely to do so, however,startingnot from a backgroundin regulatory policy,with an itch for transnationalism,but from the perspective
of legal craftsmanship(both have noted their admirationfor the second JusticeJohn MarshallHarlan),and a commitmentto popularsov-
215 See Sunstein,Radicalsin Robes at xi-xv (cited in note 89) (describingfour ideological
divisionsin today'sjudiciaryand denigratingthosejudicialideologiesthatlook to createpolicy).
216 See, for example,Scalia,Common-LawCourtsat 3 (citedin note 200).
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JusticeBreyer's
Mandarin
Liberty
821
ereignty.217As Roberts and Alito look to the purposes and conse-
quences in statutes and constitutionalprovisions,they are likely to do
so in ways newly free of the ideological baggage that Breyer,with his
reflexive ideologicalcommitmentto mid-twentiethcenturyliberalism,
and his enthusiasm for a globetrotting cosmopolitanism,inevitably
brings to the task. Justices Roberts and Alito, for instance, are less
likely to reflexivelyraise the specter of the outbreak of religiouswar
in EstablishmentClause cases, a specter that, for a variety of timebound reasons,assumed a privilegedplace in the mid-twentieth century liberal constitutional imagination.21 Because they are less beholden to the statist-managerialistworldviewthat became an important strain of post-New Deal administrativeliberalism,JusticesRoberts and Alito may be less inclined to dispatchwith free speech concerns when presented with the "purposive"applicationof that vision
in speech-restrictivecampaignfinance regulations.2• Similarly,Justices
Roberts and Alito may be more inclined to draw the sorts of fine,
craftsmanlikedistinctionsin affirmativeaction cases--distinguishing,
for instance,a compelling interest in having a raciallydiverse police
force in the context of a raciallydiverse city of neighborhoods,from
the desire of the administratorsof a very small set of elite universities
to use race discriminationto serve the cause of "diversity"more generally-that Justice Breyer, a quintessential Cambridge,Massachusetts, liberal ("minimalism"notwithstanding)-would not even think
to draw.220And JusticeRoberts and Alito will likely be less awestruck
by the prospects of turning the task of constitutionalinterpretation
217 See
CopleyNews Service,EditorialWeeklyFeature(Nov 15, 2005) (describingRoberts
and Alito as eschewing"judicialoverreaching"in a way similarto the second JusticeHarlan).
JusticeScaliaalso came to the Courtfrom a backgroundin administrativelaw.But his approach
to the subject,in starkcontradistinctionto JusticeBreyer'spolicy-orientedvision,is thoroughly
Textand Tradition
constitutional.See generallyRalphA. Rossum,AntoninScalia'sJurisprudence:
(Kansas2006).
218 See Simmons-Harris,
536 US at 728-29 (Breyerdissenting)(arguingfor school vouchers
becausethey do not threatenthe EstablishmentClause'spurposeto foster"socialconcord");pp
46-50; pp 120-22. See also Kersch,ConstructingCivil Libertiesat 235-325 (cited in note 125)
(discussingthe intellectualoriginsof the SupremeCourt'smid-twentiethcentury's"strictseparationism"in EstablishmentClausecases).
219 On the links between the defense of speech-restrictivecampaignfinance regulations
with the broaderNew Deal managerialism(particularlyas it involved labor law), see Ken I.
Kersch,How ConductBecame Speechand SpeechBecame Conduct:A PoliticalDevelopment
Case Studyin Labor Law and the Freedomof Speech,U Penn J Const L (forthcoming2006)
(discussingthe originsof contemporaryregulationsof politicalspeech duringelectionsin managerialapproachesto laborunionelectionsforgedin the 1930sand 1940s).
220 See, for example,Antol v Perry,82 F3d 1291,1303 (3d Circuit1996) (Alito concurring)
(holdingthatevidencethat an employerviolatedan affirmativeactionplan sufficedto createan
issue of materialfact but acknowledgingthat such evidencehas "verylittle probativevalue for
the purposeof provingintentionaldiscrimination").
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of ChicagoLawReview
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towards a model anchored in deracinated,functionalist theories of
"governance"and more firmly committed to the traditionalunderstandings of popular sovereignty on which the American constitutional "government"is based.
As such, if constitutionalliberalismcontinues its decline,the real
interpretive debate may end up being between conservatives Scalia
and Thomas,on the one hand, and Roberts and Alito on the other
(just as, in an earlierliberalera, it was between fellow New Deal liberals Frankfurterand Black).
Justice Breyer'sdecision in this book to recycle Hart and Sacks's
approach to the interpretationof statutes and to repackage it as an
approachto construingthe Constitution,when marriedto his advoin constitutionalinterpretationand
cacy for a greater"comparativism"
the consolidationof a networked"globalcommunityof courts,"a subject he took up (as a matter of substanceand practice)in his previous
book-co-edited with the former president of the French Conseil
Constitutionnel- certainlymarks a significantcontributionto liberal
constitutional thought.The ways in which these two sides of Justice
Breyer's outlook may be mutuallyconstitutiveare especiallyinterestThat American democracy would be advanced-and, for that
ing.221
matter,the power of judges properlycabined-should JusticeBreyer's
mandarinvision prevail, though, seems exceedingly doubtful indeed.
Far from evincinga commitmentto "participatorydemocracy"as that
concept has been understood in American political life, Justice
Breyer'svision will doubtlessappeal to a certainsort of contemporary
liberal-a sort many have argued is too predominantin the Democratic Partyfor its own good. Whetherthis mandarinspiritwill fare any
better as law than it has in politics is an open question.
221 ConsiderAnne-MarieSlaughter,A Global Communityof Courts,44 Harv Intl L J 191,
192 (2003) ("Thiscommunityof courtsis constitutedabove all by the self-awarenessof the nationaland internationaljudgeswho play a part.");Anne-MarieSlaughter,A New WorldOrder34
(Princeton2004) ("Suppos[ing]sovereigntyitself couldbe disaggregated...,the core characteristic of sovereigntywould shift from autonomyfrom outside interferenceto the capacity to
networksof all types.... [D]isaggregatedsovereigntywould
participatein transgovernmental
empowergovernmentinstitutionsaroundthe worldto engagewith each other in networksthat
would strengthenthem.");Badinterand Breyer,eds,Judgesin Contemporary
Democracyat 4-5
(cited in note 2) (discussingjudicialactivism,the "secularpapacy"of the judiciary,judicialintervention into the politicalprocess,internationalcriminaljustice,the judiciaryand the media,and
judges'conceptionsof theirown socialroles).
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