Active Liberty: Interpreting Our Democratic Constitution

Book by Stephen Breyer

Review by Thom Hartmann, originally published at on March 9, 2006.

On February 14, 2006, the Associated Press quoted U.S. Supreme Court Associate Justice Antonin Scalia, while addressing the Federalist Society in Puerto Rico, as criticizing "those who believe in what he called the 'living Constitution.'" The specific quote from Scalia was:

"[T]he argument of flexibility . . . goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break. But you would have to be an idiot to believe that . . . . The Constitution is not a living organism, it is a legal document."

The main "idiot" the Scalia was referring to - a point not lost on most in the legal or political fields - was U.S. Supreme Court Associate Justice Stephen Breyer, who along with the majority of his and Scalia's peers agreed with the Founders of our nation and the Framers of the Constitution that it was a document that should change with the times.

If Thomas Jefferson were to be consulted, there is little doubt he would disagree with Scalia and his extremist conservative compatriots on the Court. In a letter to Samuel Kercheval on July 12, 1816, eight years after he'd left the presidency of the United States, Jefferson wrote clearly and unambiguously his thoughts on the nature of our Constitution and the Founders' and Framers' opinion of it being a legal document or something that should change with the times.

Jefferson even went so far as to suggest that the Constitution should be regularly revisited, and expressed his concern that if it were not, and society were rigidly maintained as it were in 1787 when the Constitution was written, society would crumble; an oligarchy of, by, and for "the rich" would arise and increase the public debt for their own enrichment; the middle class would be destroyed; and Americans would become mere "automatons of misery."

SIR,--I duly received your favor of June the 13th, with the copy of the letters on the calling a convention, on which you are pleased to ask my opinion.. .... The infancy of the subject at that moment, and our inexperience of self-government, occasioned gross departures in that draught from genuine republican canons. In truth, the abuses of monarchy had so much filled all the space of political contemplation, that we imagined everything republican which was not monarchy. We had not yet penetrated to the mother principle, that "governments are republican only in proportion as they embody the will of their people, and execute it." Hence, our first constitutions had really no leading principles in them. ...

"Where then is our republicanism to be found? Not in our Constitution certainly, but merely in the spirit of our people. That would oblige even a despot to govern us republicanly. Owing to this spirit, and to nothing in the form of our Constitution, all things have gone well. But this fact, so triumphantly misquoted by the enemies of reformation, is not the fruit of our Constitution, but has prevailed in spite of it. Our functionaries have done well, because generally honest men. If any were not so, they feared to show it.

"But it will be said, it is easier to find faults than to amend them. ... Only lay down true principles, and adhere to them inflexibly. Do not be frightened into their surrender by the alarms of the timid, or the croakings of wealth against the ascendancy of the people. ...

"I am not among those who fear the people. They, and not the rich, are our dependance for continued freedom. ...

"Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.

"I knew that age well; I belonged to it, and labored with it. It deserved well of its country. It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead.

"I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects.

"But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.

"We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors. It is this preposterous idea which has lately deluged Europe in blood. Their monarchs, instead of wisely yielding to the gradual change of circumstances, of favoring progressive accommodation to progressive improvement, have clung to old abuses, entrenched themselves behind steady habits, and obliged their subjects to seek through blood and violence rash and ruinous innovations, which, had they been referred to the peaceful deliberations and collected wisdom of the nation, would have been put into acceptable and salutary forms.

"Let us follow no such examples, nor weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs. Let us, as our sister States have done, avail ourselves of our reason and experience, to correct the crude essays of our first and unexperienced, although wise, virtuous, and well-meaning councils. ...

"Each generation is as independent of the one preceding, as that was of all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most promotive of its own happiness; consequently, to accommodate to the circumstances in which it finds itself, that received from its predecessors; and it is for the peace and good of mankind, that a solemn opportunity of doing this every nineteen or twenty years, should be provided by the Constitution; so that it may be handed on, with periodical repairs, from generation to generation, to the end of time, if anything human can so long endure.

"It is now forty years since the constitution of Virginia was formed. The same tables inform us, that, within that period, two-thirds of the adults then living are now dead. Have then the remaining third, even if they had the wish, the right to hold in obedience to their will, and to laws heretofore made by them, the other two-thirds, who, with themselves, compose the present mass of adults?

"If they have not, who has? The dead?

"But the dead have no rights. They are nothing; and nothing cannot own something. Where there is no substance, there can be no accident. This corporeal globe, and everything upon it, belong to its present corporeal inhabitants, during their generation. They alone have a right to direct what is the concern of themselves alone, and to declare the law of that direction; and this declaration can only be made by their majority. ...

"If this avenue be shut to the call of sufferance, it will make itself heard through that of force, and we shall go on, as other nations are doing, in the endless circle of oppression, rebellion, reformation; and oppression, rebellion, reformation, again; and so on forever.

"These, Sir, are my opinions of the governments we see among men, and of the principles by which alone we may prevent our own from falling into the same dreadful track."

As you can see from this rather lengthy (and not previously published in its long form since 1904) quote from Jefferson, in the minds of the Founders and the Framers, the "idiot" would be Antonin Scalia.

So what about the other side of the Court? Although there is no "liberal wing" to today's Court, Breyer is one of the most articulate of the "moderates" on the court. (In this, I'd suggest his "moderate" perspectives are probably most similar to those of Eisenhower, Nelson Rockefeller, JFK, and today's "moderates" like Olympia Snow, Susan Collins, and Joe Biden.)

Justice Stephen Breyer opens his book - it's first paragraph - with several quotes from Jefferson expressing similar sentiments to those laid out above. The core of his book is the struggle of modern Justices to "interpret" a document written in a very different age and time for a very different society, while yet staying true to the core principles the Framers put forward.

In a chapter entitled "Speech," for example, Breyer talks about how this collision of founding precepts and changing times require careful examination. He refers to his vision of his work as a Supreme Court Justice as "active liberty" (in opposition to Scalia's "originalism"), and lays out this example:

"The first example focuses on the First Amendment and how it applies if the government seeks to regulate certain activities affecting speech, in particular campaign finance, corporate advertising about matters of public concern, and drugstore advertising informing the public that custom-made pharmaceuticals are available. These examples show the importance of reading the First Amendment not in isolation but as seeking to maintain a system of free expression designed to further a basic constitutional purpose: creating and maintaining democratic decision-making institutions."

Breyer then points out that the First Amendment doesn't differentiate between these various types of "speech," but notes that "active liberty is particularly at risk when law restricts speech directly related to the shaping of public opinion..." He adds in the next paragraph, "Second, whenever ordinary commercial or economic regulation is at issue, this special risk is normally absent."

Already we're slicing and dicing the words of the Founders, but in Breyer's view this is absolutely essential - in the context of understanding them and understanding our modern society - to maintain "active liberty" in the United States. Speaking of campaign financing, he notes:

"The campaign finance problem arises out of the explosion of campaign costs, particularly those related to television advertising, together with the vast disparity in ability to make a campaign contribution. In the year 2000, for example, election expenditures amounted to $1.4 billion, and the two presidential candidates spent about $310 million. In 2002, an off-year without a presidential contest, campaign expenditures still amounted to more than $1 billion. A typical House election cost $900,000, with an open seat costing $1.2 million; a typical Senate seat cost about $4.8 million, with an open contested seat costing about $7.1 million.

"Comparable expenditures in foreign democracies are far lower. A typical British or Canadian parliamentary election involves expenditures for individual seats of about $13,000 and $43,000 respectively. ...

"A small number of individuals and groups underwrite a very large share of these costs. In 2000, about half the money the parties spent, roughly $500 million, was soft money, i.e., money not subject to regulation under the then current campaign finance laws. Two-thirds of that money - almost $300 million - came from just 800 donors, each contributing a minimum of $120,000. ... At the same time, 99 percent of the 200 million or so citizens eligible to vote gave less than $200. Ninety-six percent gave nothing at all."

So, asks Breyer, how is the Court to consider laws that may restrict "speech" - particularly the most vital form of speech of all, political speech - when increasingly it's becoming something quite unimagined by the Framers of the Constitution?

"It is difficult to find an easy answer to this basic constitutional question in language, in history, or in tradition. The First Amendment's language says that Congress shall not abridge 'the freedom of speech.' But it does not define 'the freedom of speech' in any detail. The nation's Founders did not speak directly about campaign contributions. Madison, who decried faction, thought that Members of Congress would fairly represent all their constituents, in part because the 'electors' would not be the 'rich' any more than the 'poor.' But this kind of statement, while modestly helpful to the cause of campaign finance reform, is far from determinative.

"Neither can we find the answer through the use of purely conceptual arguments. Some claim, for example, that 'money is speech.' Others say 'money is not speech.' But neither contention helps. Money is not speech, it is money. But the expenditure of money enables speech, and that expenditure is often necessary to communicate a message, particularly in a political context. A law that forbade the expenditure of money to communicate could effectively suppress the message.

"Nor does it resolve the problem simply to point out that campaign contribution limits inhibit the political 'speech opportunities' of those who wish to contribute more. Indeed, that is so. But the question is whether, in context, such a limitation is prohibited as an abridgment of 'the freedom of speech.' To announce that the harm imposed by a contribution limit is under no circumstances justified is simply to state an ultimate constitutional conclusion; it is not to explain the underlying reasons."

This sort of an analysis portrays the brilliance of Breyer's mind, and exposes his desire to be true to Founding principles in a modern context free of his own political bias. Unlike Scalia, Thomas, or Roberts - who have demonstrated in the Oregon Death With Dignity decision a willingness to interject their own personal religious and political perspectives into a decision, which even contradicted their own previous assertions about the importance of respecting the Tenth Amendment's provisions of "states' rights" - Breyer is ever the even-handed pragmatist. He continues in his chapter on speech:

"Once we remove our blinders, however, paying increased attention to the Constitution's general democratic objective, it becomes easier to reach a solution. To understand the First Amendment as seeking in significant part to protect active liberty, 'participatory self government,' is to understand it as protecting more than the individual's modern freedom. It is to understand the amendment as seeking to facilitate a conversation among ordinary citizens that will encourage their informed participation in the electoral process. It is to suggest a constitutional purpose that goes beyond protecting the individual from government restriction of information about matters that the Constitution commits to individual, not collective, decision-making. It is to understand the First Amendment as seeking primarily to encourage the exchange of information and ideas necessary for citizens themselves to shape that 'public opinion which is the final source of government in a democratic state.' In these ways the Amendment helps to maintain a form of government open to participation (in Constant's words) by 'all the citizens, without exception.'

"To focus upon the First Amendment's relation to the Constitution's democratic objective is helpful because the campaign laws seek to further a similar objective. They seek to democratize the influence that money can bring to bear upon the electoral process, thereby bulilding public confidence in that process, broadening the base of a candidate's meaningful financial support, and encouraging greater public participation. Ultimately, they seek thereby to maintain the integrity of the political process - a process that itself translates political speech into governmental action. Insofar as they achieve these objectives, those laws, despite the limits they impose, will help to further the kind of open public political discussion that the First Amendment seeks to sustain, both as an end and as a means of achieving a workable democracy."

The logic - and conclusions - of several of the arguments in Stephen Breyer's book are ones with which many progressives would find discomfort or outright disagreement (including me), particularly when it comes to corporate personhood. (I wish he would read my book "Unequal Protection" about the corrupting of the Supreme Court in 1886.) On the other hand, several of his insights and deep-diggings are startling, thought-provoking, and ultimately very common-sensical. Because Breyer is not a doctrinaire conservative, it is all the more important that the legacy of his thought-process exist in the form of this book, and that Americans familiarize themselves with his perspectives on the most important issues of our day.

What is most useful and interesting about "Active Liberty: Interpreting Our Democratic Constitution" is that it provides an extraordinary insight into the thought processes a US Supreme Court justice of considerable intellectual power and genuine integrity uses to decide cases.

This is an important book, made all the more important by Scalia's ideological attacks on Breyer and his fellow justices. At 135 pages it's a relatively quick read, and an essential addition to your library.

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