The Right Coast

December 19, 2005
Justice Breyer’s Constitution
By Mike Rappaport

I have written a book review of Justice Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution. It is here at Tech Central Station.

I found the book simply awful. While I have enjoyed Breyer’s earlier works, especially his book Breaking the Vicious Circle, which criticized the irrationalities of environmental regulation, Active Liberty was another story. Breyer is an unbelieveable judicial activist, who nonetheless portrays himself as a believer in judicial restraint. The core idea of the book is that the value of active liberty or political participation should be used to interpret the Constitution. But Breyer never really explains why that idea trumps the other values written into the Constitution. Nor does he explain how that value allows him to protect the right to abortion and other rights that don’t seem related to political participation.

Here is an excerpt:

Far from defending the broad discretion he would give to judges, Breyer seems to be in denial about it. Breyer actually claims that, as compared to originalism (which tellingly he mistakenly refers to as “literalism”), his approach does not significantly increase the subjectivity of judicial decisions. Given the enormous power that Breyer confers on judges, this is astounding. Moving almost into the realm of self-parody, Breyer illustrates the alleged restraints on judges with his opinions from recent Establishment Clause cases. In two opinions that were so subjective that no other justice agreed with both of them, Breyer concluded that the Ten Commandments could be placed on the grounds of the Texas State Capital, but not inside a Kentucky state courthouse.