Farewell Rehnquist, move over Scalia.

Active Liberty: Interpreting Our Democratic Constitution
By Stephen Breyer
(Knopf, 176 pp., $21)

William H. Rehnquist has died, and John G. Roberts Jr. has been nominated to replace him, and another nomination is still to come: it is an understatement to say that the Supreme Court is in a period of transition. The change of personnel is taking place among conservatives of one kind or another, according to the wishes of a deeply conservative president. Yet all this must not obscure the fact that conservatism on the Court is about to encounter a serious challenge. With this small but important book, Justice Stephen Breyer emerges as a leading theorist of constitutional interpretation on the highest bench in the land. At last there has appeared a direct and substantial challenge, within the Court, to the constitutional thought of Justice Antonin Scalia, who has long offered an ambitious and forceful account about how to approach the Constitution and laws of the United States. For the next decade, I think, much of the intellectual battle, within the Court and within the nation, will have to be conducted with close reference to the conflict between the starkly different constitutional theories of Scalia and Breyer. The impact of President Bush's appointments notwithstanding, liberalism is finally, at the level of ideas, pushing back.

Breyer and Scalia begin with a shared appreciation of the fact that the justices of the Supreme Court are unelected and serve for life. Since the Court has the power to invalidate the decisions of the elected branches, it is not so easy to reconcile the magnitude of its power with the national commitment to democratic self-rule. Throughout the nation's history, many of the most prominent constitutional theorists have tried to resolve this apparent contradiction. They have argued that if the Court acts in a certain way, it can coexist comfortably with democracy after all.

Late in the nineteenth century, James Bradley Thayer argued that the Supreme Court should strike down legislation only "when those who have the right to make laws have not merely made a mistake, but have made a very clear one,--so clear that it is not open to rational question." In Thayer's view, "whatever choice is rational is constitutional." Thayer argued that the Supreme Court should uphold the actions of the elected branches unless the invalidity of their decisions is "very plain and clear, clear beyond a reasonable doubt." Thayer had an influence on Oliver Wendell Holmes, perhaps the greatest figure in the history of American law, who generally agreed with his plea for judicial deference to the legislature. And in the period after Franklin Delano Roosevelt's New Deal, Thayer's approach had a significant role on the Supreme Court, embraced as it generally was by Holmes's disciple Felix Frankfurter. William Rehnquist was himself no theorist, but he showed occasional impulses in Thayer's direction.

The idea of deference to the elected branches lost much of its appeal in the 1950s and 1960s, when the Supreme Court, under the leadership of Chief Justice Earl Warren, was invalidating school segregation, protecting freedom of speech, striking down poll taxes, requiring a rule of one person, one vote, and protecting accused criminals against police abuse. Is it possible to defend the Warren Court against the charge that its decisions were fatally undemocratic? The most elaborate effort came from John Hart Ely, who argued for what he called a "representation-reinforcing" approach to judicial review. Like Thayer, Ely emphasized the central importance of democratic self-rule; but he insisted that if self-rule is really our lodestar, then unqualified judicial deference to legislatures is utterly senseless. Some rights, Ely argued, are indispensable to self-rule, and the Court legitimately protects those rights not in spite of democracy but in its very name.

The right to vote and the right to speak were Ely's central examples. Courts promote democracy when they protect those rights. And Ely went further. He argued that some groups are at a systematic disadvantage in the democratic process, and that when courts protect "discrete and insular minorities," they are therefore strengthening democracy, too. Ely was particularly concerned with African Americans, whom he saw as frequently unable to protect themselves in politics. But with some qualifications, his plea for judicial protection could be extended to women and gays and lesbians as well.

A third theory of constitutional interpretation, espoused most prominently by Scalia and also favored by Clarence Thomas, is known as "originalism." Originalists believe that the Constitution should be interpreted to mean exactly what it meant at the time that it was ratified. If the Equal Protection Clause was originally understood to permit sex discrimination, then courts should permit sex discrimination. If the Second Amendment was originally understood to forbid gun control, then courts should forbid gun control. When President Bush praises "strict construction," many people take him to be embracing originalism. Originalists such as Scalia reject Thayer's approach, because they are quite prepared to strike down legislation that violates the original understanding. They are mystified by Ely's idea of "representation-reinforcing" judicial review. But originalists, too, prize democracy. They emphasize that the Constitution was ratified by "We the People," who have sovereign authority, and they want to limit the discretion of federal judges, who are after all not elected. It is true that those who ratified the Constitution are long dead, and this point creates a substantial problem for originalists; but democracy is nonetheless central to originalist thinking about constitutional law.

As a professor at Harvard Law School, Stephen Breyer specialized in administrative law and regulatory policy. Constitutional law was not his field. As a member of the Supreme Court, however, Breyer has gradually been developing a distinctive constitutional approach of his own, one that can be seen as directly responsive to Scalia and originalism. This book announces and develops that theory. In so doing, it constitutes a major challenge not only to Scalia's principles and methods, but also to the legacy of Rehnquist, with his strongly conservative inclinations. Appearing when the Supreme Court is in transition, and when the national debate about the Court and the Constitution has degenerated into a war of slogans, Breyer's timing is uncanny.

Breyer's major theme is "active liberty," which he associates with the right of self-governance. In his own judicial work, Breyer might indeed be seen as the most consistently democratic member of the Rehnquist Court: among its nine members, he has shown the highest percentage of votes to uphold acts of Congress and to defer to the decisions of the executive branch. But Breyer does not mean to follow Thayer: he does not believe that the Court should uphold legislation whenever the Constitution is unclear. Like Ely, Breyer wants the courts to take an aggressive role in some areas, above all in order to protect democratic governance.

His book comes in three parts. The first builds on Benjamin Constant's famous distinction between the liberty of the ancients and the liberty of the moderns. The liberty of the ancients involves "active liberty"--the right to share in the exercise of sovereign power. Quoting Constant, Breyer refers to the hope that the sharing of that power would "ennoble" the people's "thoughts and establish among them a kind of intellectual equality which forms the glory and power of a people." But Constant also prized negative liberty, meaning "individual independence" from government authority. In Constant's view, which Breyer firmly endorses, it is necessary to have both forms of freedom, and thus "to combine the two together."

Breyer believes that the Founders of the Constitution did exactly that. His special emphasis is on what Constant called "an active and constant participation in collective power." That form of participation includes voting, town meetings, and the like; but it also requires that citizens receive information and education, so as to promote their capacity to ensure effective governance. In Breyer's account, the citizens of post-revolutionary America insisted on highly democratic forms of state government, promoting popular control. Notwithstanding the ambivalent experiences of post-revolutionary governments, the Founders of the Constitution accepted the deepest aspirations of the American revolutionaries, creating a framework with a "basically democratic outlook." The document begins, as it happens, with the words, "We the People," and in Breyer's view its very structure is a testimonial to active liberty. Both the House and the Senate are subject to electoral control. Even with the electoral college, the choice of the president is ultimately traceable to voters, not to an unaccountable elite. Breyer believes that this entire system is "difficult to reconcile with a retreat from democratic principle."

Quite the contrary. Breyer claims that the Constitution can be viewed "as focusing upon active liberty." He thinks that constitutional interpretation should be undertaken with close reference to that central constitutional purpose. In his account, the Warren Court appreciated active liberty, and it attempted to make that form of liberty more real for all Americans. The Rehnquist Court, by contrast, may have pushed the pendulum too far back in the other direction.

So Breyer believes that an appreciation of the idea of active liberty has concrete implications for a wide range of modern disputes, and the second part of his book traces those implications. He begins with free speech. An obvious question is whether the Court should be hostile or receptive to campaign finance reform. With his eye directly on the democratic ball, Breyer suggests that if we focus on the Constitution's basic structural objective, "participatory self-government," then we will be receptive to restrictions on campaign contributions. A central reason is that such restrictions "seek to democratize the influence that money can bring to bear upon the electoral process." He thinks that some of his colleagues, most prominently Rehnquist and Scalia, have been mistaken to invoke negative liberty as a rigid barrier to campaign finance restrictions. In the same vein, he insists that the principle of free speech, regarded from the standpoint of active liberty, gives special protection to political speech, and significantly less protection to commercial advertising. He criticizes his colleagues on the Court for protecting advertising with such aggressiveness in recent years. Breyer's interpretation of freedom of speech emphasizes democratic self-government above all.

Affirmative action might seem to have little to do with active liberty. At first glance, it poses a conflict between the ideal of color-blindness and what Breyer calls a "narrowly purposive" understanding of the Equal Protection Clause, one that emphasizes the historical mistreatment of African Americans. Directly disagreeing with Scalia and Rehnquist, Breyer tends toward the narrowly purposive approach. But he also contends that in permitting affirmative action at educational institutions, the Court has been directly concerned with democratic self-government. The reason is plain: "some form of affirmative action" is "necessary to maintain a well-functioning participatory democracy." Breyer points to the Court's emphasis on the role of broad access to education in "sustaining our political and cultural heritage" and in promoting diverse leadership. Underlining those points, Breyer argues that the Court's decision to permit affirmative action made a direct appeal "to principles of solidarity, to principles of fraternity, to principles of active liberty." In Breyer's view, it should be no surprise that the Court selected an interpretation of the Equal Protection Clause that would promote, rather than undermine, the operation of democracy.

With respect to privacy, Breyer's emphasis is on the novelty of new technologies and the rise of unanticipated questions about how to balance law enforcement needs against the interest in keeping personal information private. Owing to the novelty and the difficulty of those problems, Breyer argues for "a special degree of judicial modesty and caution." He wants to avoid a "premature judicial decision" that would risk "short-circuiting, or pre-empting, the 'conversational' law-making process." Hence his plea is for narrow and careful judicial rulings that do not lay out long-term solutions. In Breyer's view, such rulings serve active liberty, because they refuse to "limit legislative options in ways now unforeseeable." By its very nature, a narrow ruling is unlikely to "interfere with any ongoing democratic policy debate." His argument here is important, because other members of the Court, notably Scalia, have objected to such narrow rulings on the ground that they leave too much uncertainty for the future. For Breyer, such uncertainty may be a friend of democracy.

Some of the most noteworthy decisions of the Rehnquist Court have attempted to limit the power of Congress. Here Rehnquist himself was the leader, and the Court has, since the 1990s, adopted positions that he began to press in the 1970s. The Rehnquist Court struck down the Violence Against Women Act, for example, as beyond congressional authority under the Commerce Clause. It also announced an "anti-commandeering" principle, which forbids the national government from requiring state legislatures to enact laws. In the abstract, these decisions seem to promote active liberty, because they decrease the authority of the more remote national government, and because they promote participation and self-government at the local level. Breyer agrees that the federal system fits with his general theme, since that system makes "it easier for citizens to hold government officials accountable" and brings "government closer to home"; but he strongly objects to the Rehnquist Court's federalism decisions. With respect to congressional enactments, he observes that "the public has participated in the legislative process at the national level," and hence the principle of active liberty calls for deference by the Court. Breyer's special target is the anti-commandeering principle. Speaking in pragmatic terms, Breyer thinks that this prohibition precludes valuable initiatives to protect against terrorism, environmental degradation, and natural disasters--initiatives in which, for example, the national government requires state officials to ensure compliance with federal standards.

Breyer also contends that an understanding of active liberty can inform more technical debates. Consider a prominent example. Should courts rely only on a statute's literal text, or should they place an emphasis instead "on statutory purpose and congressional intent"? Sharply disagreeing with the more textually oriented Scalia, Breyer favors purpose and intent. He emphasizes that a purpose-based approach asks courts to consider the goals of "the 'reasonable Member of Congress'--a legal fiction that applies, for example, even when Congress did not in fact consider a particular problem." Breyer thinks that this approach, as compared with a single-minded focus on the literal text, will tend to make the law more sensible. He also contends that it "helps to implement the public's will and is therefore consistent with the Constitution's democratic purpose." Breyer concludes that an emphasis on legislative purpose "means that laws will work better for the people they are presently meant to affect. Law is tied to life; and a failure to understand how a statute is so tied can undermine the very human activity that the law seeks to benefit."

The third part of Breyer's book tackles broader questions of interpretive theory and directly engages Scalia's contrary view. Breyer emphasizes that he means to draw attention to two considerations above all: purposes and consequences. Constitutional provisions, he thinks, have "certain basic purposes," and they should be understood in light of those purposes and the broader democratic goals that infuse the Constitution as a whole. In addition, consequences are "an important yardstick to ensure a given interpretation's faithfulness to these democratic purposes." Breyer is fully aware that many people, including Scalia and Thomas, are drawn to "textualism" and its close cousin "originalism"--approaches that argue in favor of close attention to the meaning of legal terms at the precise time they were enacted. He knows that such people are likely to think that his own approach is an invitation for open-ended judicial lawmaking, in a way that compromises his own democratic aspirations. But he has several responses to such criticisms.

For a start, originalist judges claim to follow history, but they cannot easily demonstrate that history favors their preferred method. The Constitution does not say that it should be interpreted to mean what it meant when it was ratified. The document itself enshrines no particular theory of interpretation. And if originalism cannot be defended by reference to the intentions and the understandings of the Framers, Breyer asks, in what way can it be defended, "other than in an appeal to consequences?" He knows that some of the most sophisticated originalists ultimately argue that their approach will have good consequences--for example, by stabilizing the law and deterring judges from imposing their own views. So even Breyer's originalist adversaries are "consequentialist in an important sense." (Rehnquist himself never squarely endorsed originalism, but his votes generally lined up with his originalist colleagues. His principles of constitutional interpretation will remain unspecified.)

Breyer also argues that his own approach does not at all leave courts at sea, for he, too, insists that judges must take account of "the legal precedents, rules, standards, practices, and institutional understanding that a decision will affect." Those who focus on consequences will not favor frequent or dramatic legal change, simply because stability is important. But the important point is this: to oppose textualism and originalism is hardly to oppose the careful consideration of the Constitution and statutory law. One of the many services performed by Breyer's book is that it should make it difficult, or even impossible, for critics to caricature the anti-originalist position. Moreover, textualism and originalism also cannot avoid the problem of judicial discretion. Their methods do not provide quite the unmediated and value-free inquiry that they imagine. "Which historical account shall we use? Which tradition shall we apply?" In the end, Breyer contends that the real problem with textualism and originalism is that they "may themselves produce seriously harmful consequences--outweighing whatever risks of subjectivity or uncertainty are inherent in other approaches." His ultimate goal is "a framework for democratic government" that will prove workable over time, and he believes that his kind of purposive approach, rooted in active liberty, is most likely to promote that goal.

This is a brisk, lucid, and energetic book, written with conviction and offering a central argument that is at once provocative and appealing. It is not usual for a member of the Supreme Court to attempt to set out a general approach to his job; and Breyer's effort must be ranked among the most impressive of such efforts in the nation's long history. For that reason alone, the appearance of his book is an event of considerable importance. Scalia has long been traveling the country, making the argument on behalf of originalism and contending that there is no real alternative to it. Breyer demonstrates that on this point Scalia is wrong. Moreover, he does so in a way that is unfailingly civil and generous to those who disagree with him--and thus provides a model for how respectful argument might occur, even on a bench that has become polarized by unusually hot rhetoric.

Breyer's specific arguments make a great deal of sense. In the domain of personal privacy, for example, the Court should indeed be aware of how little it knows about current technological developments, and narrow rulings have the valuable feature of avoiding premature solutions. In general, Breyer makes a reasonable plea for judicial restraint, and it is illuminating to hear that plea from one of the Court's "liberals." But one of his largest claims is more general still: that any approach to legal interpretation must be defended in a way that plays close attention to its consequences. Despite its simplicity, this point is widely ignored.

It is hardly enough for originalists to defend their approach in strictly historical terms. Even if those who ratified the Constitution meant to hold us to their specific views--itself a much-disputed claim--it is up to us, and not to them, to decide whether to follow those views. The question of whether originalism is a sensible approach to constitutional law cannot be answered without reference to its consequences--and its consequences do indeed seem to make originalism unacceptable, because they would threaten so many contemporary rights and understandings. Just for starters, originalism would permit the national government to discriminate on the basis of both race and sex; it would allow state governments to discriminate on the basis of sex; and it would probably allow state governments to segregate people on the basis of race. (Rehnquist's refusal to endorse originalism may plausibly be attributed to the fact that it would produce unacceptable consequences; he was something of a pragmatist.)

For all these reasons, I believe that Breyer's approach is theoretically appealing as well as historically significant; but he offers a sketch, not a sustained argument, and he leaves significant gaps. Above all, he says too little about the difficulties that judges face in assessing consequences and in describing purposes. Recall that, in discussing the interpretation of statutes, Breyer argues for close attention to purposes, understood as the objectives of a "reasonable legislator." It should be obvious that different judges will often disagree about what a reasonable legislator would do. Imagine a law that condemns "discrimination on the basis of sex," and suppose that a state adopts a height and weight requirement for police officers, one that excludes far more women than men. In deciding whether this requirement is "discrimination," how shall judges characterize the purpose of a reasonable legislator? It is inevitable that courts will see their own preferred view as reasonable. Does this promote active liberty? And the problem is pervasive: laws rarely come with clear announcements of their purposes.

The textualist Scalia ridicules the resort to purposes, which, in his view, are often made up by willful judges. He believes that an emphasis on text, which is what after all has been enacted, promotes democratic responsibility, and also helps to discipline the judiciary. Textualism itself might easily be defended with reference to the principle of active liberty. Perhaps Scalia overstates the constraints imposed by text, but Breyer underplays the risk that any judgments about "reasonableness" will be the judges' own, in a way that disserves democracy itself. We may agree that any theory of interpretation has to be defended in terms of its consequences; but for interpreting statutes it is not at all clear that a purpose-based approach, focusing on consequences in particular cases, is preferable to a text-based approach, which asks judges to think little or not at all about consequences. Textualism might well lead to better results, all things considered. None of this means that Scalia's approach is necessarily superior to Breyer's. It means only that Breyer has not adequately engaged the possibility that, on his own consequentialist grounds, and with an eye on democratic goals, textualism in the interpretation of ordinary statutes might be better than an approach that explores purposes.

In fact, this problem pervades Breyer's general thesis about active liberty. To say the least, his investigation of constitutional history is sketchy, and he slides quickly over intense academic debates about what the American Framers actually sought to do. Breyer is not wrong to say that the Framers wanted to recognize both active liberty and negative liberty. Yet the Framers saw themselves as republicans, not as democrats, and they did not believe in participatory democracy, or in rule through town meetings. Of course they attempted to provide a framework for a form of self-government--but so stated, that goal operates at an exceedingly high level of abstraction, which does not easily permit interpreters to bring it to bear on concrete cases. Most of the time, we cannot easily link the general idea of self-government to particular judgments about contemporary disputes in constitutional law.

Certainly Breyer does not try to argue, in originalist fashion, that the actual drafters and ratifiers of the Constitution wanted to allow campaign finance reform, restrictions on advertising, affirmative action programs, and federal commandeering of state government. He argues instead that the idea of active liberty, which animates the Constitution, helps to justify these judgments. But exactly what kind of argument is that? The Framers of the Constitution also placed a high premium on "domestic tranquility," to which the preamble explicitly refers. Would it be right to say that because domestic tranquility is a central goal of the document, the president is permitted to ban dangerous speech? Or that, if affirmative action threatens to divide the races in a way that compromises "tranquility," color-blindness is the right principle after all? In any event, Breyer emphasizes that the Constitution attempts to protect negative liberty, too. Why shouldn't a ban on campaign finance restrictions be seen to follow from that goal? If the answer lies in the idea of active liberty, why shouldn't we see campaign finance restrictions as offending, at once, both forms of liberty?

Or suppose that we accept, as we should, Breyer's claims about the centrality of active liberty to the constitutional design. Is originalism, therefore, off the table? Not at all. We might believe, with some constitutional theorists (including Alexander Hamilton), that constitutional provisions, as products of an engaged citizenry, reflect the will of We the People, as ordinary legislation may not. If so, an emphasis on the original understanding can be taken to serve active liberty at the same time that it promotes negative liberty. It serves active liberty because it follows the specific judgments of an engaged citizenry. It promotes negative liberty to the extent that those judgments favor negative liberty. I do not mean to suggest that such an argument is convincing; the fact that the Framers and the ratifiers are long dead creates grave difficulties for those who argue for originalism in democracy's name. My point is that Breyer's emphasis on active liberty is pitched at too high a level of generality to rule originalism out of bounds.

Or return to Thayer's claim that the Court should strike down legislation only if it clearly violates the Constitution. Despite his general enthusiasm for restraint, Breyer does not mean to follow Thayer. But why not? Thayer and his followers can claim to favor active liberty, because they allow sovereign people to do as they choose. Perhaps Breyer thinks that this approach undervalues negative liberty. But why? Maybe a deferential Court will ultimately produce exactly the right mix of the two kinds of freedom. Ely's approach, emphasizing reinforcement of democratic processes, can easily be rooted in active liberty. Breyer writes approvingly of the Warren Court on the ground that its decisions promoted active liberty; and Ely is the Warren Court's most systematic defender. Does Breyer mean to endorse Ely? If not, where does he differ from him? It is puzzling that Breyer's book lacks even a single reference to Ely's well-known argument. (Breyer is rather ungenerous to other theorists who have toiled in the same vineyard, above all to Frank Michelman, who has been making claims about "active liberty" for over two decades.)

Recall that Breyer does not claim that legislative "purpose" is always something that can simply be found. "Purpose" is sometimes what judges attribute to the legislature, based on their own conception of what reasonable legislators would mean to do. If this is true for the purposes of individual statutes, it is also true for the purposes of the Constitution as well. When Breyer asserts that the "basic" purpose of the Constitution is to protect active liberty, so as to produce concrete conclusions on disputed questions, his own judgments about the goals of a reasonable constitution-maker are playing a central role in his assertion. Fortunately, Breyer's own judgments are reasonable; but he underplays the extent to which they are his own.

The same point bears on Breyer's enthusiasm for an inquiry into consequences. Consequences do matter; but some of the time it is impossible to assess consequences without reference to disputed questions of value. Consider the question of affirmative action, and suppose, rightly, that the text of the Constitution could be understood, but need not be understood, to require color-blindness. If we care about consequences, will we accept the color-blindness principle or not? Suppose we believe that affirmative action programs create racial divisiveness and increase the risk that underqualified people will be placed in important positions. If those are bad consequences, perhaps we will oppose affirmative action programs. An emphasis on consequences as such is only a start. To be sure, Breyer is not concerned with consequences alone; he wants to understand them with close reference to purposes, above all "active liberty." But as I have suggested, that idea, taken in the abstract, is compatible with a range of different approaches to constitutional law. It does not mandate Breyer's own approach.

None of this means that Breyer is wrong. On the contrary, I believe that he is largely right. He is right to say that the free speech principle should be understood in democratic terms. He is right to say that where the Court lacks important information, it should rule cautiously and narrowly. He is right to resist the constitutional assault on affirmative action programs (an assault that, by the way, is extremely hard to defend in originalist terms). He is right to reject originalism. Above all, he is right to emphasize the importance of democratic goals to constitutional interpretation. The problem is that he underplays the inevitable role of judicial judgments in characterizing purposes and in assessing consequences. But no approach to interpretation can avoid the interpreter's own judgments. A fuller account than Breyer has given here would specify the underlying judgments and attempt to defend them in far more detail. Such an account would have to show that courts are both willing and able to proceed as Breyer suggests; and it would also have to show that as compared with alternative possibilities, a democracy-centered approach of his preferred sort really would promote self-government, properly understood.

Active Liberty is a sketch, not a fully developed argument. But even sketches can change the way we look at things. With its modesty, its self-conscious pragmatism, and its emphasis on the centrality of democratic goals, Stephen Breyer's approach provides an eminently reasonable foundation for constitutional law. It is an approach that deserves a place of honor in national debates, now and in the future, about the role of the Supreme Court in American life.

Cass R. Sunstein is a contributing editor.

By Cass R. Sunstein