Justice Breyer's democratic pragmatism.

• Author: Sunstein, Cass R.

The pragmatic method is primarily a method of settling metaphysical disputes that otherwise might be interminable. Is the world one or many?--fated or free?--material or spiritual?--here are notions either of which may or may not hold good of the world; and disputes over such notions are unending. The pragmatic method in such cases is to try to interpret each notion by tracing its respective practical consequences. What difference would it practically make to any one if this notion rather than that notion were true? (1)

A Concise Statement of the Task In interpreting a statute a court should: Decide what purpose ought to be attributed to the statute and to any subordinate provision of it which may be involved;.... It should assume, unless the contrary unmistakably appears, that the legislature was made up of reasonable persons pursuing reasonable purposes reasonably. (2)

1. PRAGMATISM, CONSEQUENCES, AND ACTIVE LIBERTY

   As a law professor at Harvard Law School, Stephen Breyer specialized in administrative law. His important work in that field was marked above all by its unmistakably pragmatic foundations. (3) In an influential book, Breyer emphasized that regulatory problems were "mismatched" to regulatory tools; he urged that an understanding of the particular problem that justified regulation would help in the selection of the right tool. (4) One of Breyer's major innovations lay in an insistence on evaluating traditional doctrines not in a vacuum, but in light of the concrete effects of regulation on the real world, (5) Hence Breyer argued for a close connection between administrative law and regulatory policy. (6) Continuing his pragmatic orientation, he also emphasized the importance of better priority-setting in regulation--of finding mechanisms to ensure that resources are devoted to large problems rather than small ones. (7)

   While some of Breyer's work touched on the separation of powers, (8) constitutional law was not his field. But as a member of the Supreme Court, Breyer has slowly been developing a distinctive approach of his own, one that also has a pragmatic dimension, and that can be seen as directly responsive to his colleague, Justice Antonin Scalia, and to Scalia's embrace of "originalism": the view that the Constitution should be interpreted to mean what it originally meant. (9)

   1. Three Claims

      This book announces and develops Breyer's theory. Its most distinctive feature is its effort to connect three seemingly disparate claims. The first is an insistence that judicial review can and should be undertaken with close reference to active liberty and to democratic goals, a point with clear links to the work of John Hart Ely. (10) The second is an emphasis on the centrality of "purposes" to legal interpretation, a point rooted in the great legal process materials of Henry Hart and Albert Sacks and, in particular, their brilliant note on statutory interpretation. (11) The third is a claim about the need to evaluate theories of legal interpretation with close reference to their consequences, a point whose foundations can be found in American pragmatism. In Breyer's view, any theory of interpretation must be assessed by taking close account of its actual effects.

      Much of the interest and originality of Breyer's book lies in its brisk but ambitious effort to integrate these three claims. In my view, Breyer is right to see a connection between self-government and constitutional interpretation, and also to emphasize that a theory of interpretation must be attentive to its consequences. No such theory can be evaluated or defended without reference to its effects. In addition, Breyer argues convincingly for an approach to constitutional law that generally respects democratic prerogatives and also embodies a form of modesty, in the form of narrow rulings on the most difficult questions. But I shall raise two sets of questions about his analysis.

      The first set involves the difficulties of purposivism. Those who emphasize active liberty and democratic self-government might well reject Breyer's purposive approach to interpretation, including Breyer's purposive reading of the Constitution. They might embrace textualism on the ground that text represents the best evidence of the public's will; they might prefer canons of construction; they might even embrace the view, associated with James Bradley Thayer, that courts should uphold legislation unless it is clearly beyond constitutional bounds. (12) The second set of questions involves the possibility that consequentialism, properly understood, might lead in directions that Breyer rejects. Those who believe in the importance of consequences might well be drawn to an approach very different from Breyer's. If consequences matter, textualism and Thayerism are not off the table.

      Breyer's specific conclusions are unfailingly reasonable; the question is whether his general commitments are enough to justify those conclusions. I shall suggest that they are not. Breyer is correct to reject originalism in constitutional law, and in that domain his own approach, embracing both minimalism and restraint, has a great deal to offer. But it must be developed in a way that devotes more care to the problem of judicial fallibility, and I shall offer some notes on how the theory might be so developed. In the end, I suggest that while purposivism has its uses, Breyer underrates the arguments for starting with the text, and undervalues the role of canons of construction in statutory interpretation.

   2. Theory and Practice

      Breyer's organizing theme is "active liberty," which he associates with the right of self-governance. It is noteworthy that in his own judicial work, Breyer is plausibly seen as the most consistently democratic member of the Rehnquist Court: Among its nine members, he had the highest percentage of votes to uphold acts of Congress (13) and also to defer to the decisions of the executive branch. (14) And indeed, a great deal of his book is a plea for judicial caution and deference. (15) But Breyer does not mean to say that courts should uphold legislation whenever the Constitution is unclear. (16) Like Ely, Breyer does not rule out the view that courts should take an aggressive role in some areas, above all in order to protect democratic governance. (17)

      His short 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. (18) 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 the power of a people." (19) But Constant also prized negative liberty, meaning individual "independence" from government authority. (20) As Breyer describes Constant's view, which he firmly endorses, it is necessary to have both forms of freedom, and thus "to combine the two together." (21)

      Breyer believes that the Framers of the Constitution did exactly that. His special emphasis is on what Constant called "an active and constant participation in public power." (22) That form of participation includes voting, town meetings, and the like; but it also requires that citizens receive information and education to develop their capacity for effective self-governance. In Breyer's view, the citizens of post-Revolutionary America insisted on highly democratic forms of state government, promoting popular control. Breyer is aware of the highly ambivalent experiences of post-Revolutionary governments; he knows that some commentators have rejected the view that the Constitution is a democratic document. (23) Nonetheless, he believes that the Framers of the Constitution accepted the deepest aspirations of the American Revolution, creating a framework with a basically "democratic objective." (24)

      In Breyer's account, the Warren Court appreciated active liberty and it attempted to make that form of liberty more real for all Americans. (25) By contrast, the Rehnquist Court may have pushed the pendulum "too far" back in the other direction. (26) In short, Breyer believes that an appreciation of active liberty has concrete implications for a wide range of modern disputes.

      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 "the Constitution's general democratic objective ... 'participatory self-government,'" (27) 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." (28) In the same vein, Breyer insists that the free speech principle, seen in terms 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 the aggressiveness that they have shown in recent years. His purposive interpretation of freedom of speech thus emphasizes democratic self-government above all. (29)

      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'" (30) understanding of the Equal Protection Clause, one that emphasizes the historical mistreatment of African-Americans. Directly disagreeing with some of his colleagues, (31) Breyer endorses the narrowly purposive approach. But he also contends that in permitting affirmative action at educational institutions, the Court has been centrally concerned with democratic self-government. The reason...