- The Washington Times - Monday, November 29, 2004

President George W. Bush has acclaimed Associate Justices Antonin Scalia and Clarence Thomas as models for Supreme Court appointments. Associate Justice Stephen Breyer, the flip side of Justices Scalia and Thomas, underscores President Bush’s judicial wisdom.

In a series of lectures at Harvard University on Nov. 17-19 styled “Our Democratic Constitution,” Justice Breyer celebrates an extraconstitutional and pliable standard of interpretation indistinguishable from rule by Platonic Guardians. His teaching that “active liberty” as conceived by a French political philosopher in 1819 should inform Supreme Court edicts makes the case for Mr. Bush’s likely appointees better than the president himself.

Like legislative and executive authority, legitimate judicial power must be anchored in the Constitution. Article III and companion provisions empower the Supreme Court to interpret the nation’s Founding charter and federal statutes in litigation. To interpret means to apply the text in accord with customary linguistic usage and the discernable purposes of its authors. That coherent standard, despite occasional difficulties in application, confines disagreements to the molar or molecular.

In contrast, Justice Breyer’s interpretive North Star, plucked from the scribblings of Frenchman Benjamin Constant, is an “active liberty, consisting of a sharing of a Nation’s sovereign authority among that Nation’s citizens.” The liberal appointee of President William Jefferson Clinton rhapsodizes over Constant’s utopian visions: “active and constant participation in collective power [by every citizen]”; “sub[mission] to all the citizens without exception the care and assessment of their most sacred interests;” [and] ennoble[ment] [of the people’s] thoughts and establish[ment] among them [of] a kind of intellectual equality which forms the glory and power of a people.” The associate justice discovers a new constitutional right that had eluded his predecessors for more than two centuries — the people’s right to an active and sleepless participation in the exercise of sovereign power, and elaborates that, “The people must have room to decide and leeway to make mistakes.”

To paraphrase a memorable characterization of the ill-fated Charge of the Light Brigade, the justice’s imagination is magnificent, but it makes for wretched constitutional law. The Founding Fathers feared direct democracy and circumscribed the franchise accordingly. Neither women nor blacks nor nonproperty owners were guaranteed a right to vote. State legislators elected senators and established the method of selecting presidential electors. The latter were expected to exercise independent judgment free from popular follies.

As James Madison amplified in The Federalist Papers, if every Athenian citizen were a Socrates, an assembly consisting of all would still be a mob. The legislative power was thought most vulnerable to abuse. Checks such as bicameralism and a qualified veto were embraced to forestall a mutability and proliferation of special interest laws. To proclaim a people’s constitutional right to “active liberty,” i.e., decisive influence over sovereign decisions akin to a daily plebiscite, is nonsense on stilts. Further, as Humpty Dumpty would say, that invented right can mean anything a justice wants it to mean, no more or less.

Take campaign finance laws. Justice Breyer himself recognizes, the public is scandalously ignorant of politics and political philosophy. More students know the names of the Three Stooges than the three branches of government. More rather than less money is urgent for voter education, registration and turnout. Antibribery and disclosure laws deter corruption. Yet Justice Breyer declares “active liberty” awakens concern over spiraling campaign contributions and expenditures, and highlights minuscule election costs in Great Britain and Canada.

But what is the genesis of that concern? The justice fails to find any differences in public confidence, political dynamics or laws among jurisdictions based on contribution or expenditure limits. He insists tight restrictions promote active liberty by facilitating “open public political discussion,” a farcical pontification when the discussants know nothing worth saying.

Active liberty is regularly enlisted by Justice Breyer to sustain his idiosyncratic preferences for health, safety and environmental regulation. He salutes national dictates over state experimentation “to avoid a race to the bottom among states hoping to attract industry investment.” But the pejorative “race to the bottom” cloaks Justice Breyer’s prejudices. Attracting industry can equally be lionized as promoting a race to the top among states in creating jobs, raising individual and family incomes, and expanding corporate tax revenues to support public schools and utilities.

Regulation inescapably entails trade-offs between economic growth and noneconomic objectives. The Constitution, in comparison to Justice Breyer’s “active liberty,” does not place its thumb on either side of the scale.

The justice’s liberal biases favoring a regulatory state under an “active liberty” umbrella reach their apex in discussing the Commerce Clause powers of Congress. He frets over precedents that engender uncertainty about the evidence of interstate affects Congress must marshal to justify a federal statute. New enactments, says Justice Breyer, might be deterred, which would be a bad thing for “active liberty.”

But doctrinal uncertainty evokes no corresponding consternation in matters such as church-state relations, child pornography, the death penalty and war powers.

In sum, the associate justice’s “active liberty” vision of the Constitution betrays a defeated liberal political agenda masquerading as law. It epitomizes everything President Bush was elected to oppose in Supreme Court appointments.

Bruce Fein is a constitutional lawyer and international consultant at Bruce Fein & Associates and the Lichfield Group.

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