A Matter of Interpretation: Federal Courts and the Law.

• Author: Posner, Richard A.
• Position: Book review

A Supreme Court Justice writing a book about constitutional law is like a dog walking on his hind legs: The wonder is not that it is done well but that it is done at all. The dog's walking is inhibited by anatomical limitations, the Justice's writing by political ones. Supreme Court Justices are powerful political figures; they cannot write with the freedom and candor of more obscure people. But just as Shakespeare managed to write great plays under official censorship, so Justice Breyer has managed to write a good book under self-censorship.

In recent years, the initiative in constitutional debate has passed to the conservatives. They have proposed, and to an extent achieved, a rolling back of liberal doctrines (notably in regard to states' rights, police practices, and executive power) and of the methodology of loose construction that enabled liberal Justices to provide a plausible justification for those doctrines. The liberals continue to win a significant share of victories, in such areas as homosexual rights, affirmative action, and capital punishment, but for the most part their stance, their outlook, has been defensive: defense of the Warren Court and Roe v. Wade. Justice Breyer is a liberal (though a moderate one), but he wants to do more than defend liberal decisions, doctrines, and methods piecemeal. He wants an overarching approach to set against the "textualism" and "originalism" of his judicial foes. His book articulates and defends such an approach, which he calls "active liberty."

The book is short, and not only clearly written but written on a level that should make it accessible to an audience wider than an audience of judges and lawyers. And despite its brevity and simplicity it will be welcomed by constitutional lawyers, perhaps even by some of Breyer's colleagues, as a rallying point for liberal constitutional thought. It is a serious, and perhaps an important--it is certainly likely to be an influential--contribution to constitutional debate. The short book of Scalia's against which Breyer is writing (1) has been cited in more than a thousand law review articles. (2) Breyer can expect similar attention to his book.

But while acknowledging its merits and likely influence, I do not find Active Liberty convincing, and will devote the bulk of this Review to explaining why. So first--what is "active liberty"? Breyer, following Benjamin Constant, distinguishes between the "liberty of the ancients" and the "liberty of the moderns," and aligns active liberty with the former. He fails to note that Constant was writing against the "liberty of the ancients," which Rousseau had introduced into French political thought with tragic results, and in favor of the "liberty of the moderns." (3) To Constant, the liberty of the ancients signified the collective exercise of sovereignty devoid of any concept of individual rights against the state. (4) It was an extreme version of what we now call "direct democracy," which is illustrated by referenda in California and Switzerland and by the New England town meeting. The liberty of the moderns, by contrast, is liberty from state oppression. It is what Isaiah Berlin called "negative liberty." (5) It is what citizens of Athens and of revolutionary France lacked. Its instruments include representative democracy (not direct democracy, as in ancient Athens), separation of powers, federalism, and the type of legally enforceable rights against government that are found in the Bill of Rights.

Breyer understands by liberty of the ancients the liberty that Athenian citizens enjoyed for much of the fifth and fourth centuries B.C. (6) by reason of the fact that their city was a democracy. Constant, on the contrary, believed Athens to have been the ancient state that "most resembles the modern ones," (7) and Sparta a better example of the liberty of the ancients. (8) But Athens was actually an excellent example of that liberty. The Athenian Assembly, to which all citizens belonged, had plenary power; there were no legislators other than the citizens themselves when attending its sessions. To prevent the emergence of a political class, the few executive officials were chosen mainly by lot, for one-year terms, though some were elected and could be reelected. (9) Similarly, there were no judges except randomly selected subsets of citizens--jurors who voted without deliberating, unguided by jury instructions, since there were no judges to give such instructions. For that matter, there was no legal profession, though orators such as Demosthenes would draft speeches for the litigants to give at trial. There was plenty of litigation, but no concept that people had rights to life, liberty, or property that could be enforced against the polls. The only justice was popular justice.

2To lodge executive and judicial power in randomly chosen citizens, and legislative power in whatever citizens choose to attend legislative sessions, is to carry self-government about as far as it can be carried. It is town meeting government writ large. It is not a feasible model for a nation of 300 million people. Breyer knows this, though he says that the Court should be doing more to promote the "active liberty of the ancients," (10) and underscores the point by saying that "'active liberty' ... bears some similarities to ... Isaiah Berlin's concept of 'positive liberty.'" (11) That was Berlin's term for the "liberty of the ancients" as revived by Rousseau and extended, Berlin thought, by modern totalitarians! (12) Breyer does not want to turn the United States into a direct democracy on the model of ancient Athens, or on any other model. He says that "'[d]elegated democracy' need not represent a significant departure from democratic principle," (13) and by "delegated democracy" he means simply--representative democracy. All he really wants to do is to interpret the Constitution in a manner that will promote his conception of democratic choice by sweeping away obstacles to such choice. His project resembles that of John Hart Ely (cited by Breyer, though only in passing (14)), who argued that the major thrust of the Warren Court had been to make American government more democratic, (15) but not democratic in the Athenian sense.

Because he is a judge, Breyer cannot acknowledge that he wants to impose his concept of active liberty on the Constitution. Convention requires him to find the concept in the Constitution. Manfully, he tries. He recognizes that it is an uphill struggle: "The primarily democratic nature of the Constitution's governmental structure has not always seemed obvious." (16) Indeed not--and for the excellent reason that the structure is not "primarily democratic." It is republican, with a democratic component. The Constitution's rejection of monarchy (no king), aristocracy (no titles of nobility), and a national church (no religious oaths of office) was revolutionary; but the governmental structure that it created bore no resemblance to that of ancient Athens and was, and remains, incompletely democratic.

Of the major components of the federal government--the executive branch, consisting of the President and Vice President and other high officials; the judiciary; the Senate; and the House of Representatives-only the last was to be elected by the people. And since the Constitution created no right to vote and allowed the states to fix the eligibility criteria for voters for members of the House (except that the criteria had to be the same as those the state prescribed for voters or members of the lower house of its own legislature) states could limit the franchise by imposing property or other qualifications for voting. The President and Vice President were to be chosen by an Electoral College whose members would in turn be chosen by the states according to rules adopted by each state legislature; there was no requirement that those rules provide for popular election of the members of the College. Other executive branch officials would be appointed by the President or by the judges. Senators would be appointed by state legislatures. Supreme Court Justices (and other federal judges, if Congress took up the option conferred on it by the Constitution of creating federal courts in addition to the Supreme Court) would be appointed by the President, subject to senatorial confirmation, for life. Political parties were not envisaged; the best men would rule, rather than the survivors of party competition. There was not a trace of direct democracy in the Constitution: no provision for initiatives, referenda, or recalls. The Framers purported to be speaking on behalf of "We the People," as the preamble states, but there is no novelty in adopting a nondemocratic regime by plebiscite; ask Napoleon. Even the ratification of the Constitution was by state conventions rather than by direct popular vote. The Constitution guarantees a republican form of government (presumably similar though not identical to the republican form of government created by the Constitution) to each state, but not a democratic government.

If, as Breyer states, the Framers of the Constitution had "confidence in democracy as the best check upon government's oppressive tendencies," (17) why is there so little democracy, and none of it direct democracy, in the document they wrote? What we see in the structure of the original Constitution is not an echo of Athens but an adaptation of the institutions of the British eighteenth-century monarchy to a republican ideology. The President corresponds to the king; he exercises the traditional monarchical prerogatives of pardoning, conducting foreign affairs, appointing executive officials and judges, and commanding the armed forces. He is of course not directly elected. The Senate and the Supreme Court correspond to the House of Lords, and the House of Representatives corresponds to the House of Commons; elected, but by a restricted franchise. Subsequent amendments and changing...