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Justice Breyer's Harvard lectures

By Robert S. Sargent Jr.
web posted December 6, 2004

On November 17, 18, and 19, Justice Stephen Breyer gave a series of three lectures at Harvard University titled "Our Democratic Constitution." (PDF format, 536K) In these lectures, Breyer said: "I shall focus on the people's constitutional right to an 'active and constant participation in collective power.' And I shall explain why I believe that increased judicial emphasis upon this right will help judges better resolve several specific interpretive issues. In effect, I argue that greater judicial emphasis upon active liberty will help to bring about better law." This approach Breyer contrasts "…with that of judges who would place primary interpretive weight upon language, history, tradition, and precedent." For anyone wanting to understand how activist judges justify their decisions, these lectures are a must-read.

Justice Stephen Breyer

Let's examine Breyer's take on the Commerce Clause. He laments the fact that "The Court has found that gun possession near local schools…do not sufficiently 'affect' interstate commerce to permit Congress to legislate." He is referring to the "Gun-Free School Zones Act of 1990" which Congress passed to outlaw firearms in school zones. It was justified as Congress' right to legislate under the Commerce Clause, which says, "Congress shall have power…to regulate commerce…among the several States…" This act was challenged, and decided in 1995. In United States v. Lopez, in a majority opinion written by Chief Justice Rehnquist, it was held: "…the possession of a gun in a local school zone is in no sense an economic activity that might…have…a substantial effect on interstate commerce." Without commenting on whether the law itself is good or bad, it obviously has nothing to do with commerce. Yet Breyer thinks that a right, "active liberty," trumps the words of our Constitution. "Active liberty?" After all, "…the public has participated in the legislative process at the national level." Any law passed at the federal level that Breyer likes will pass Constitutional muster under his new right of "active liberty."

To see how Justice Breyer views cases differently than one who places weight on "language, history, tradition, and precedent," he gives affirmative action as an example. How does the court square affirmative action with the Fourteenth Amendment? The Amendment says "No…State shall…deny to any person within its jurisdiction the equal protection of the laws." We know from history that this was a mandate for the states to not write any laws which discriminate against ex-slaves. States are forbidden to write any laws that include race-based discrimination. Period. Unfortunately, for egalitarians, this only produces "…a form of equal opportunity." Ignoring history, as he admits, Breyer now says that, "…equality is the underlying objective of the Equal Protection Clause." Equal results, not equal opportunity, become the controlling agenda, and if affirmative action brings us closer to that objective then it passes Constitutional muster.

Finally, Breyer explains how a good judge should look at statutes. According to him the language of the statute is often secondary to its interpretation. He suggests that he and the other Justices take what he calls a "purpose-based approach." "At the heart of a purpose-based approach stands the 'reasonable Member of Congress.'…The judge will ask how this person, aware of the statute's language, structure, and general objectives, would have wanted a court to interpret the statute in light of present circumstances in the particular case." Well, now, each judge will have a different view of how a "reasonable" member might want a court to interpret his statute. This throws out completely the idea of a neutral, objective judge applying the law. What's reasonable to Scalia just might seem unreasonable to Breyer, so instead of applying the law, Breyer would have everyone subjectively guessing what a "reasonable Member of Congress" meant. This turns our system on its head.

Our favorite liberal at the Washington Post, E.J. Dionne, Jr., writing about these lectures, wrote, "Breyer…offered a bold challenge to conservative judicial activism." Remember, Breyer characterized Justices he opposes as "…putting primary interpretive weight upon language, history, tradition, and precedent." That's activism? Contrast this with Breyer making up a new constitutional right: "active liberty," ignoring history as in the Fourteenth Amendment, and subjectively appraising legislator's intent by deciding what a "reasonable Member of Congress" would have a judge interpret his statute. Breyer as much as admits he is an activist, and he explains in detail how and why he is one. Which would you rather have, a bunch of lawyers arguing over what's "reasonable," or nine Justices applying the law?

Robert S. Sargent, Jr. is a senior writer for Enter Stage Right and can be reached at rssjr@citcom.net.

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