Vol. 15 No.10 (October 2005), pp.945-949


ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION, by Stephen Breyer. New York: Alfred A. Knopff. 2005. 176pp. Cloth $28.00.  ISBN: 0-307-26313-4.


Reviewed by Mark Rush, Department of Politics, Washington and Lee University.  Email: RushM [at] wlu.edu


In ACTIVE LIBERTY, Justice Stephen Breyer “proposes a new path for the Post-Rehnquist Court” (Cohen 2005) by refining the arguments he set forth at his 2004 Tanner Lecture at Harvard, which was a refined version of his 2001 NYU Madison Lecture. Insofar as these predecessors to ACTIVE LIBERTY have already been scrutinized, a review of the book will also entail a response to prior reactions to the ideas Breyer develops in it.


A basic premise of the book is that, because rights and liberties can be regarded in both positive (what he calls “ancient”) and negative (or modern) terms, judges ought to consider both of these conceptions of rights when making decisions.  This is an unassailably reasonable point. 


Drawing upon the writings of Benjamin Constant (1819), Breyer argues that it is necessary to consider ancient, active liberty (that is, the liberty to engage in “an active and constant participation in collective power” (p.4)) as well as negative, modern liberty (freedom from state constraint), when considering the resolution of a case.  Breyer contends the Constitution embodies an appreciation for, if not an outright commitment to, the promotion of active, ancient liberty.  This active liberty is cast in terms of the “sharing of a nations’ sovereign authority among that nation’s citizens.”  This, in turn contemplates a right to “examine the actions and accounts of those who administer government” (p.4).


His thesis, then, is that “courts should take greater account of the Constitution’s democratic nature when they interpret constitutional and statutory texts” (p.5), and therefore consider the consequences their decisions might have for the promotion of ancient active liberty.


A key element of Breyer’s analysis is his conclusion that an appreciation for active, ancient liberty imposes a duty on the courts to behave modestly—if not deferentially—when striking down legislation. There is a threefold basis for this.  First, Breyer notes that courts should acknowledge that the many more heads present in the legislature are likely to be more circumspect than the considerably fewer heads present on any court (p.5).  Accordingly, promotion of the Constitution’s democratic objective entails deferring to the interpretations of rights that arise from the collective wisdom of legislatures.  Second, unless the legislature has perpetrated an egregious violation of rights, such deference in and of itself promotes the Constitution’s democratic objective by allowing the process of representative government to play out.  Finally, promoting active liberty simply produces better law.  He states that his vision


finds in the Constitution’s democratic [*946] objective not simply restraint on judicial power or an ancient counterpart of more modern protection, but also a source of judicial authority and an interpretive aid to more effective protection of ancient and modern liberty alike . . . . increased emphasis on that objective by judges when they interpret a legal text will yield better law—law that helps a community of individuals democratically find practical solutions to contemporary social problems. (p.6)


Thus, Breyer’s theory of ancient liberty would seem at first to represent a call for judicial restraint.  In this respect, one might expect that it would be welcomed by critics of judicial activism.  Instead, the opposite has been the case.  On more than one occasion, Breyer’s thinking has been cast as a response to Justice Antonin Scalia’s originalist theory of constitutional and statutory interpretation and judicial restraint (see, e.g., Cohen 2005).  In some ways, it does seem that Breyer gets the better of Scalia—but not for the reasons that Scalia’s critics would like.


Breyer’s call for judges to be conscious of the political consequences of their decisions certainly is antithetical to Scalia’s vision of the Court.  While Scalia criticizes such consequentialism, Breyer demonstrates nicely that 1) it is unavoidable, 2) it is perfectly reasonable, and 3) Scalia is just as consequentialist as Breyer himself. 


Unless one (particularly Scalia) is willing to argue that the Framers conceived of rights only and strictly in modern, negative terms, Breyer’s contention that judges must look at rights in their entirety (both their ancient and modern elements) is unremarkable.  In this regard, then, Breyer’s admission that he considers the impact of how he balances the ancient and positive aspects of rights should also be unremarkable unless one believes that the Constitution mandates a negative view of rights.


In this respect, Scalia (or a Scalian) would have no basis on which to criticize Breyer’s consequentialism.  If one accepts that rights have ancient and modern components, then weighing each (or, correspondingly, ignoring the impact of weighing one aspect more heavily than the other) is certainly consequentialist. 


Critics of Scalia’s originalism and emphasis on the plain meaning of the constitutional text will celebrate Breyer’s “purposive” approach to interpreting the Constitution.  Focusing on the extent to which the Constitution promotes active liberty, Breyer asserts that judges should consider whether the manner in which they render a decision conforms to the Constitution’s goal of promoting participatory democracy.


Breyer’s supporters argue that his vision unshackles justices from the rigidity that a Scalian originalism would impose.  However, there is something paradoxical to this interpretation of Breyer.  If Breyer advocates fidelity to original purpose and Scalia advocates fidelity to original meaning, neither really escapes the criticism that they are looking at contemporary constitutional cases through an antiquated lens.  Thus, while Breyer’s logic may render Scalia as consequentialist as the next judge, Breyer’s celebration of original purpose hardly distances him from Scalia’s own originalism.


To the extent that Breyer is concerned [*947] with promoting judicial modesty and deference so that the legislature can maximize its function and therefore manifest the participatory purpose of the constitution, his theory would be perceived as a theory of judicial restraint.  But, if one probes, it becomes evident that this is anything but a constraint on judicial discretion.


For example, in his analysis of restrictions on campaign spending, he argues in favor of restraints because they promote a more egalitarian, participatory vision of democracy.  Speech, in this regard, is a collective good that must be promoted and fostered.  To strike down all spending restrictions on the assumption that money is speech would render political dialogue and conversation the province of the few loudest or best financed voices in the polity.  Insofar as this would result in a general diminishment of the quantity and quality of political voices, he reasons that there is a practical and very democracy-reinforcing reason to support such restrictions on individual speech rights even though a critic might argue that such spending limitations are exactly the sort of speech restraint the Constitution forbids.


Still, Breyer responds that the courts must defer to the collective wisdom of legislatures.  So long as the curtailment of the individual speech right is balanced by a corresponding enhancement of the collective caliber of political speech, Breyer says there is no reason to challenge the validity of the point at which the legislature chooses to strike the balance (p.49).  If campaign spending restrictions favor collective speech more than individual speech, there are no constitutional grounds on which to challenge the restrictions.  Breyer offers similar analysis of controversies concerning affirmative action, federalism, privacy and administrative law.


There is no question that Breyer offers us a thoughtful response to Scalia.  In so doing, he broadens the groundwork on which we might base our interpretation of rights—even though his fidelity to an original constitutional purpose really does not seem to distinguish him from Scalia as much as he might suppose.  If one originalism is as good as another, then the choice between Scalia’s originalism and Breyer’s really boils down to a choice of lenses through which to view the Constitution’s meaning.


More thought-provoking and troubling is the manner in which Breyer seems to place our constitutional fates in the hands of the legislators to whom he would defer.  His willingness to second guess the motives behind Kentucky and Texas legislative decisions to display the ten commandments notwithstanding, Breyer’s assertion that legislators ought to be granted great leeway in striking the balance among competing conceptions of rights does not logically promote the competition and pluralism that his theory suggests:


I see the [Constitution] as creating a coherent framework for a certain kind of government.  Described generally, that government is democratic; it avoids concentration of too much power in too few hands; it protects personal liberty; it insists that the law respect each individual equally; and it acts only on the basis of law itself. (p.8)


In fact, some of Breyer’s reasoning [*948] seems to result in exactly the opposite outcome.  His reasoning in favor of campaign spending is a case in point. 


While seeking to promote collective speech at the expense of the voices of particularly loud individuals, Breyer fails to see that trusting the government to regulate the volume of speech in the manner set forth, for example, in the Bipartisan Campaign Reform Act actually played right into the hands of the incumbent powers that have a clear incentive to control threats to their security.


This point was not lost on Scalia who pointed out in MCCONNELL v. FEC that the so-called campaign reform act was clearly an incumbency protection act.  Accordingly, the egalitarian vision that underpins this aspect of Breyer’s reasoning ironically renders the participatory democracy that he would promote less potent.  Insofar as the legislative experts are able to justify the balance they strike between modern (individual) and ancient (collective) visions of the speech rights, they are able essentially to mute those potent voices in the polity that would be most capable of challenging them.  In this respect, Breyer’s promotion of ancient liberty actually does more to concentrate political power than the promotion of its modern antithesis.


Thus, on the one hand, Breyer seems to call for a broad deference to the legislature that plays into its motives for self-preservation, or what John Hart Ely (1980) would have described as “self-dealing,” or Sam Issacharoff and Rick Pildes (1998) describe as a political “lockup.”  On the other hand, Justice Breyer’s desire to promote better law and practical solutions to difficult contemporary social problems justifies the sort of judicial meddling in social policies that enkindles Scalian calls for adherence to the plain meaning of the text and nothing more.


In the end, there is no question that this is an important work.  A sitting member of the Supreme Court has offered a succinct view of his vision of the constitution, rights, democracy and the role of a judge.  In so doing, Justice Breyer offers a thoughtful response to Justice Scalia’s originalism.  As well, Breyer’s discussion of ancient and modern liberty offers a fresh perspective for constitutional interpretation.  Nonetheless, despite celebrations by some, Breyer does not get the best of Scalia.  He only battles him to a draw.  Breyer’s broader vision of rights ought to give Scalia pause.  But, Breyer’s own originalism and its capacity to justify judicial meddling in the democratic process, in the end, undermines his calls for modesty and deference.



Breyer, Stephen. 2004. Tanner Lecture, “Our Democratic Constitution” delivered at  Harvard University 17-19 November 2004.  Available: http://www.supremecourtus.gov/publicinfo/speeches/sp_11-17-04.html .  Breyer gave an earlier version of the speech as the Madison Lecture at New York University on 22 October 2001. Available: http://www.supremecourtus.gov/publicinfo/speeches/sp_10-22-01.html .  


Cohen, Adam. 2005. “Justice Breyer Proposes a New Path for the Post-Rehnquist Court.” THE NEW YORK TIMES, Page A20, 26 September. [*949]


Constant, Benjamin. 1819/1988. THE LIBERTY OF THE ANCIENTS COMPARED WITH THE LIBERTY OF THE MODERNS IN POLITICAL WRITINGS. English Translation: Biancamaria Fontana (ed).  Cambridge: Cambridge University Press.


Ely, John H. 1980.  DEMOCRACY AND DISTRUST.  Cambridge: Harvard University Press.


Issacharoff, Samuel and Richard Pildes. 1998 “Politics as Markets: Partisan Lockups of the Democratic Process.” 50 STANFORD LAW REVIEW 643-717.



MCCONNELL v. FEC, 540 US 93 (2003).


© Copyright 2005 by the author, Mark Rush.