In Justice Stephen Breyer’s book Active Liberty, he argues that the Constitution created a federal government embodying the principles of democracy and, as such, judges should defer to Congress as well as state governments as the representative bodies of the people unless they intrude on narrow fundamental rights. Though acknowledging negative rights, he defends fundamental rights like free speech primarily as social rights that enhance the democratic process, and he claims that these rights should not be as strongly protected when not related to the democratic process.
What basis does he give for this interpretation? He essentially provides three reasons: (1) there is a history of voting and active participation in local government in the United State prior to the Constitution, (2) the Constitution starts with the phrase “we the people” which he understands to refer to the present public rather than the people of 1787, and (3) people vote for officials to represent them under the Constitution. Since “we the people” vote for members of the federal government and since people actively participated in state/and local governments prior to the Constitution, the Constitution allegedly grants nearly unlimited power to the federal government.
Though he alludes in a single parenthesis in the book to the Commerce Clause, he neglects to mention that Article I Section 8 of the Constitution specifically enumerates powers to Congress, that the Tenth Amendment restricts the federal government to those enumerated powers, and that the Ninth Amendment rebuts any interpretative method that construes the Constitution to deny or disparage rights retained by the people. After all, why—since voting happens—should he? Given his reasoning, if part of the Constitution said “the sole power of the federal government shall be national defense,” then his arguments would override that because, after all, voting happens—meaning under Breyer’s reasoning that such a clause should not be interpreted to restrict the government. In fact, he does ignore such a clause since the Tenth Amendment restricts the government to national defense and a handful of other powers.
To more specifically respond to his justifications, all three of them provide evidence that the Constitution designed a government intended to reflect generally the will of the people, but they do not show what powers the Constitution granted the democratically run federal government. His first reason provides little more than context since the history predating the Constitution in no way describes the actual powers enumerated to the federal government. Regarding his second reason, “we the people” in context does not even support his position that the preamble emphasizes the democratic nature of the Constitution by referring always to the present generation rather than the founding generation. Though he claims that the phrase refers to the present public rather than “we the people of 1787,” his interpretation ignores that the preamble continues beyond the first three words to say, “and secure the blessings of liberty to ourselves and our posterity” (emphasis added). As it references future generations, the Preamble shows that the Constitution created a government of fixed binding rules for the people and their posterity. Thirdly, the fact that various parts of the Constitution describe direct and indirect electoral processes does make government officials ultimately accountable to the people, but it does not describe what the government may do under the Constitution. The powers enumerated to Congress, and not the electoral process, determines the scope of the federal government’s powers.
More disappointing than his complete neglect of the Tenth Amendment, he also does not attempt to reconcile his support for judicial deference to enable Active Liberty with his support for the rights protected in cases not mentioned in this book such as Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas (contraception use, abortion, and sodomy respectively). In fact, in his chapter on privacy, he quite explicitly says that it would be best for issues of privacy to be handled by the democratic people exercising their Active Liberty. Similarly, when covering the First Amendment, he limits its purpose to protecting the social benefits of speech in a democratic society, and he denies that the First Amendment strongly protects all other speech—even though its text quite explicitly protects a much broader array of rights. In contrast, an interpretation that protects the right to use contraception, have an abortion, and engage in sodomy removes these issues from the purview of the democratic process and limits the Active Liberty Breyer otherwise defends, but he supports these privacy interests nonetheless. Why? Just as he remains silent on why the Tenth Amendment does not meaningfully restrict the federal government, he remains equally silent on why the Due Process Clause protects this arbitrary hodgepodge of rights.
Though one has to wonder under Breyer’s reasoning why these specific rights deserve protection, one can more importantly ask why Breyer so narrowly limits the rights free from the clutches of Active Liberty. If people have a right to engage in sodomy in their home, then why does Active Liberty allow for the criminalization of prostitution done in the same home? If people have a right to use contraception in their home, then why does Active Liberty allow for the criminalization of medical marijuana use in the same home? For each arbitrary right that Breyer deems outside the scope of Active Liberty, many more rights could be protected under similar reasoning, but Breyer, at least for rights unrelated to promoting the democratic process, does not even attempt to produce a principle to determine which unlisted rights Active Liberty cannot violate.
As with most living constitutionalists, Breyer ignores substantial sections of the Constitution in determining his judicial philosophy. Despite his enormous focus on the electoral process described in the Constitution, he ignores that Article I Section 8 only enumerates a limited set of powers to the federal government, that the Tenth Amendment restricts the federal government to its delegated powers, and that the Ninth Amendment protects unlisted rights from being denied or disparaged. With his focus on Active Liberty, he provides no justification for why Active Liberty deserves restrictions in cases other than those that promote the democratic process, and more importantly no principle to explain the random rights that are deemed outside the scope of Active Liberty. Rather than a presumption of constitutionality due to its democratic nature, the Constitution should be interpreted to have a presumption of liberty due to the many limitations it imposes on government power. The amount of the Constitution about which Breyer remains silent when attempting to justify deferring to Active Liberty simply reveals how much of the Constitution must be ignored to come to such a conclusion.