Does it take a theory? Originalism, active liberty, and minimalism.

• Author: Ryan, James E.

ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION By Stephen Breyer. New York City: Knopf, 2005.

RADICALS IN ROBES: WHY EXTREME RIGHT-WING COURTS ARE WRONG FOR AMERICA By Cass R. Sunstein. Cambridge: Basic Books, 2005.

INTRODUCTION I. ORIGINALISM AND ORIGINALISTS A. Justice Scalia's Originalism B. False Fundamentalists C. Originalism's Defects 1. Justice Breyer's view 2. Professor Sunstein's objections II. ACTIVE LIBERTY AND MINIMALISM A. Justice Breyer's Active Liberty B. Minimalism III. DOES IT TAKE A THEORY? CONCLUSION INTRODUCTION

For the last fifteen years or so, Justice Antonin Scalia and his sympathizers within and outside the academy have dominated discussion and debate over how best to interpret the Constitution. (1) Their preferred methodology, "originalism," shorn for the moment of complications, essentially requires courts to follow the original meaning of constitutional text. (2) Courts should accordingly determine how the provisions were understood at the time they were ratified, and that understanding should guide decisions. (3) The justification for this approach appears, at first glance, as simple and sensible as the methodology itself: applying the text as originally understood is the only method by which courts can claim to be applying the law, rather than the individual preferences of those sitting as judges. (4)

Most champions of originalism, though not all, currently reside on the right side of the political spectrum, and thus originalism has become inextricably associated with politically conservative judges and commentators. (5) The claim that originalism is the only "lawful" way to interpret and apply the Constitution, moreover, readily translates into the ubiquitous accusation from the right that nonoriginalists tend to be unprincipled and activist, happy to enshrine their personal views into the Constitution. (6) This charge is repeated in various forms in the political arena by those who claim that only conservative judges can be trusted to follow the law and refrain from legislating from the bench. (7)

It is impossible to measure the precise influence of Justice Scalia and his fellow travelers on the debate regarding constitutional interpretation. But there can be no doubt that they have had a significant impact within and outside the academy, as both judges and law professors alike have devoted increased attention over the last decade to enactment history and the theory of originalism. Until recently, the left has played a relatively small role in this debate, which has made it all the more difficult to combat the suggestion that nonoriginalists are lawless. (8) The left has nipped at the heels of originalism, by pointing out that originalists like Justices Scalia and Thomas do not always practice what they preach. (9) But a compelling and popular alternative theory has yet to emerge from the academy or from sitting judges as a serious competitor to originalism. As Adele Stan recently observed, "[l]iberals have done virtually nothing to explain the Constitution to regular people in terms they understand." (10)

Two recent books, by Justice Stephen Breyer (11) and Professor Cass Sunstein, (12) attempt to fill this void. Indeed, those in the popular media have characterized both as responses to Justice Scalia and originalism. (13) Both are unusual books, though for different reasons. Although sitting Justices have occasionally written books, (14) it is exceedingly rare for a Justice to write a book about his or her approach to interpreting the Constitution and statutes. The only other recent example is Justice Scalia's A Matter of Interpretation, (15) which roughly sketches the theory to which Breyer (like Sunstein) is in some sense responding. For this reason alone, Justice Breyer's book demands attention. Law professors, by contrast, often write books, but not so often like the one Professor Sunstein has written, which is clearly designed to reach a popular audience. In fact, both books seem self-consciously designed to influence a public debate that until now has been fairly lopsided.

The two books have similar structures. In Active Liberty, Justice Breyer begins by describing his general approach to the Constitution. This approach is informed by what he sees as the two overarching goals of our democratic Constitution: to protect "negative liberty," meaning freedom from government constraint, and to protect "active liberty," meaning the ability to participate in governance. (16) Although he acknowledges the importance of the former, he emphasizes the latter, and argues that reference to this overarching purpose, along with attention to the practical consequences of government decisions, can help guide courts to the proper outcome in concrete cases. (17) Justice Breyer disclaims that his approach is an actual theory of how to interpret the Constitution, calling it instead a "theme" that "can affect" interpretation or a matter of "perspective[] and emphasis." (18) He proceeds in the second part of the book to illustrate his approach through discussion of numerous concrete cases involving a range of issues. (19) He concludes by contrasting his approach to originalism, which he defines as relying on "the Framers' original expectations, narrowly conceived," (20) and he spends the final part of the book highlighting the relative weaknesses of (this form of) originalism. (21)

Like Active Liberty, Radicals in Robes also begins by setting out Professor Sunstein's preferred approach to deciding constitutional cases, though it does so in large part by explaining what the approach is not. One need not wait until the end of this book to read a critique of originalism, which Sunstein renames--cleverly or cheaply, depending on one's perspective--"fundamentalism." (22) In Sunstein's view, the main debate in constitutional law is between fundamentalists, who espouse originalism, and those he calls "minimalists," who do not espouse much of anything. (23) What minimalists do, which Professor Sunstein admires and advocates, is go slowly. They take small steps, decide one case at a time, refrain from announcing grand principles, and exercise caution and humility. (24)

Like Justice Breyer's active liberty approach, "minimalism" is not a theory of interpretation: it is "a method and a constraint," not a "program," and "does not dictate particular results." (25) Minimalists might lean to the left or the right; they might even have originalist tendencies. (26) But they don't lean hard in one direction or embrace overarching theories. After identifying an assortment of shortcomings that plague fundamentalism and extolling the virtues of minimalism, Professor Sunstein spends the second half of his book illustrating the contrast between these approaches by examining a series of hot-button issues, from a right of privacy to the right to bear arms. (27)

There is much to admire in both books. Both are engaging and at times quite provocative. Justice Breyer's book is candid and smart. He offers no pat answers or simplified formula for deciding cases, which is to his credit and speaks well of his intellectual honesty. And it is simply intriguing to read a Justice's own account of his approach to constitutional cases, even if the view offered remains a bit cloudy. Professor Sunstein's book, in turn, is quite effective in poking holes in "fundamentalism" and in highlighting the numerous instances where "fundamentalists" like Justices Scalia and Thomas seem to deviate from their avowed methodology. For those who have been waiting for a public response from the left, these books are a sight for sore eyes, if for no other reason than they constitute an attempt to push back at the level of ideas. (28)

And yet the books fall a bit fiat, at least in the eyes of this (sympathetic) reader. The basic problem is suggested by the title of this Review: neither Justice Breyer nor Professor Sunstein offers and justifies a theory of constitutional interpretation. Justice Breyer comes closer than Professor Sunstein. But in my view, neither Active Liberty nor Radicals in Robes explains and justifies, in terms plain enough to influence public debate, how judges ought to decide cases. In their haste to distance themselves from originalism, moreover, both Justice Breyer and Professor Sunstein seem to distance themselves from the text of the Constitution. These seem to me fatal missteps in their efforts to persuade a general audience to reject originalism and embrace an alternative.

In addition, both books only partially succeed in their critiques of originalism. Breyer and Sunstein focus on one form of originalism, which entails looking to the narrowly conceived expectations of the Framers. While this may indeed be the way originalism is occasionally practiced by Scalia and others, it is not the only version of originalism conceivable. Nor is it necessarily the one most faithful to the text of the Constitution, which, at the end of the day, is the point of originalism. What is ironic about both books is that each contains seeds of an alternative, originalist-oriented approach. But neither Breyer nor Sunstein explores whether that alternative might be superior both to the originalism they criticize and the approaches they advocate. Indeed, absent a compelling alternative theory, one wonders if Breyer and Sunstein should have sought to mend rather than end originalism.

This Review proceeds in three Parts. Part I describes more fully the contours of the debate over originalism and the contribution that Active Liberty and Radicals in Robes make to this debate. In particular, it assesses the criticisms that Breyer and Sunstein make against originalism and self-styled originalists. Part II turns to the constitutional approaches advocated by Justice Breyer and Professor Sunstein, respectively, and examines the strengths and weaknesses of those approaches. Part III explores the larger questions regarding interpretive...