With vacancies on the Supreme Court opening up for the first time in more than a decade, America has focused on the constitutional consequences of who sits on the highest court in the land Our Consequential Constitution?

With vacancies on the Supreme Court opening up for the first time in more than a decade, America has focused on the constitutional consequences of who sits on the highest court in the land.

But while the country has been engaged in a debate about who should be appointed to the Supreme Court, two of America's best-known jurists have published their thoughts about how those justices should interpret the Constitution once on the bench.  And, for these two judicial luminaries, the focus is not on constitutional consequences but on what they regard as our consequential Constitution.

The two jurists are Justice Stephen Breyer of the Supreme Court of the United States and Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit.  In September, Justice Breyer published Active Liberty: Interpreting Our Democratic Constitution, a book adapted from the Tanner Lectures he delivered nearly a year earlier at Harvard University; and in November, Judge Posner published the Foreword to the Harvard Law Review's annual Supreme Court issue, an article he descriptively entitled "A Political Court."

While most would identify Justice Breyer and Judge Posner as legal intellectuals leading opposite ends of the ideological spectrum, as their manuscripts make abundantly clear, both believe that policy consequences should be an important -- if not the most important -- part of constitutional decision-making.  In other words, both not only believe that judges do consider consequences when deciding what the Constitution means, but that they should consider those results.

In Active Liberty, Justice Breyer argues that the United States, through its Constitution, "is a nation built upon principles of liberty."  But for Justice Breyer that "liberty means not only freedom from government coercion," what he calls "liberty of the moderns" or "civil liberty," "but also the freedom to participate in the government itself," or what he calls "liberty of the ancients" or "active liberty."

Indeed, Justice Breyer's "thesis" is that "courts should take greater account of the Constitution's democratic nature" -- its "active liberty" -- "when they interpret constitutional ... texts."  According to Justice Breyer, only when judges "consider[ ] practical consequences ... valued in terms of constitutional purposes," and specifically "active liberty," can "the freedom of the individual citizen to participate in the government and thereby share with others the right to make or control the nation's public acts" be vindicated.  In other words, Justice Breyer believes that the Constitution should be interpreted through the lens of "active liberty," and judges should focus on the consequences their decisions have on the ability of the people to participate in government.  Thus, Justice Breyer approves of constitutionally controversial measures such as campaign finance reform and affirmative action because, according to him, they are "necessary to maintain a well-functioning participatory democracy."

Not surprisingly, the more conservative Judge Posner does not use his Foreword in the Harvard Law Review to announce support for such long-time liberal policies.  But, in his conclusion, Judge Posner finds more agreement than disagreement with Justice Breyer.  In fact, after lamenting the Supreme Court's "aggressively political approaches" to constitutional interpretation that he readily admits are only "covered by a veneer of legal reasoning," Judge Posner still concludes that the "correct" approach "asks judges to focus on the practical consequences of their decisions."  It is not a happy conclusion for Judge Posner since "a pragmatic court is ... a political court," but at least it is one that "is likely to take [a] 'modest' approach to judging."

The constitutional gravity of Judge Posner's conclusion is only reinforced by the example he chooses to highlight -- last term's decision in Kelo v. City of New London, which condoned the nearly unlimited use of eminent domain.  According to Judge Posner, the Supreme Court's decision permitting a city to take private property for economic development is "pragmatically defensible," and hence constitutionally sound, because it was a judicially modest decision in which the Court "stayed its hand and allowed the challenged government officials to have their way."  As Judge Posner argues, "If the Supreme Court is inescapably a political court when it is deciding constitutional cases, let it at least be restrained in the exercise of its power, recognizing the subjective character, the insecure foundations, of its constitutional jurisprudence."  Moreover, according to Judge Posner, such judicial restraint and deference to the political branches is constitutionally correct because "it tosses the issue back into the democratic arena" where political decision-making is both proper and to be expected.

Unfortunately, in their consequential approaches to interpreting the Constitution, both Justice Breyer and Judge Posner ignore the most important consequence of their constitutional theories -- namely, that by emphasizing broad societal policy results they lose sight of fundamental individual protections from the government and political majorities.  Thus, in focusing on communal "active liberty" Justice Breyer is willing to compromise a single citizen's right to free speech, while Judge Posner in deferring to the government leaves a private property owner's home always at risk.  In other words, in the end both jurists make the same mistake made by all legal theories that elevate political or policy goals over constitutional history and text -- they fail to realize that some results, no matter how desirable or popular, have already been declared unconstitutional.

December 8, 2005
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