Friday, October 15, 2010

A rant

On Slate, Dahlia Lithwick reviews Justice Breyer's new book, Active Liberty Making Our Democracy Work.  I found it to be a frustrating review, mainly because Lithwick advances a thesis--that Breyer and Scalia are more similar than you might imagine--that she actively contradicts.  There is also some sloppy, hard-to-understand writing.  The version of the article I read contained two glaring typos (since fixed), making me wonder if I was reading a blog post rather than a published article.  (Fyi, typos are perfectly acceptable in blog posts.)  The article also contains this indecipherable paragraph:

But Breyer might say there is in fact nothing more inspiring than an invitation to roll up one's sleeves and cooperate in the crafting of a Constitution that actually works—a democracy-enhancing Constitution that defers to the people whenever possible. It's not Breyer's Constitution that's living and changing, it's the American public. And Breyer happens to be reminding us of this fact at a moment when groups like the Tea Party are claiming that they want to do just that. One wonders whether their respective views about reclaiming the Constitution are as radically different as each might believe.
I defy you to explain what the emphasized sentence means.  What is "this fact" that Justice Breyer is reminding us of?  What is the "just that" that groups like the Tea Party movement want to do?  There are two possibilities, neither of which makes much sense. 

(1) Is it the "fact" that there is "nothing more inspiring than an invitation to roll up one's sleeves and cooperate in the crafting of a Constitution that actually works—a democracy-enhancing Constitution that defers to the people whenever possible"?  That can't be it, because the Tea Party isn't "claiming that they want to do just that" (whatever "that" might be).  By and large, the Tea Party folks are pretty happy with the Constitution we have--except for maybe the 17th Amendment.  (And it's hard to argue that repealing the direct election of senators helps to create "a democracy-enhancing constitution that defers to the people whenever possible.") 

(2)   Is "this fact" that "it's not [the] constitution that's living and changing, it's the American public?"  Again, can't be:  the Tea Party isn't claiming they want to "do just that."  In fact, "that" is not something one can "do" at all. 

My best guess is that Lithwick does think that the Tea Party is making some kind of invitation to "craft" a constitution that defers to the people whenever possible.  But it actually took writing this post to even come to that tentative conclusion.

The other passage that stuck in my craw was this:
Justice Scalia likes to answer questions about his own interpretive method [originalism] by exclaiming that it's "easy" whereas Breyer never downplays how complicated his views must sound.
I think this mischaracterizes Scalia's view of originalism.  Scalia does not generally "exclaim" that  originalism makes deciding cases "easy."  In fact, he's said the opposite:  "It's not always easy to figure out what the provision meant when it was adopted . . .  I do not say [originalism] is perfect. I just say it's better than anything else."  What Scalia does argue--and what is almost irrefutably true--is that the concept of originalism is "easy" to understand.  At least you know what an originalist is trying to do.  Thus, for example, if you think that Scalia hands down a decision that doesn't comport with the original meaning, you can criticize him on those terms.  (For an example, see Justice Stevens's dissent in D.C. v. Heller.)  Scalia's criticism of Breyer's interpretative method ("active liberty") is that it is so complicated on a conceptual level that one can hardly criticize (or defend, really) a decision that's been decided according to it.  In other words, how can you criticize Justice Breyer on his own terms?  ("Hey, Breyer, the liberty in that decision isn't active enough!  It needs more yeast!")

Ultimately, Lithwick characterizes Breyer's views as "pragmatism."  I think she's probably right:  deep down, "active liberty" is just a pretext for pragmatism.  There's a lot to be said for pragmatism--but it's all better left unsaid.  This is because its great failure as an avowed legal (or moral) philosophy is that one violates it by proclaiming it.  For it is never pragmatic to justify your decisions with, "well, it just seemed like the best thing to do, all things considered."  This might actually be the best way to make moral and legal decisions, but it is never a good way to defend them.  And judges are in the business of not only making decisions, but defending them.  A successful pragmatist, therefore, is a secret one.  To the extent that Justice Breyer has been unmasked as a mere pragmatist, he needs a new cover story.    


  1. You should rename this the Torvik blog as you are the only one posting anything. At a minimum your name should be first. Especially now that you reside in the state with the largest population. Nice discussion about the judicial philosophy of the justices. You could have included some discussion about the founders' belief that the constitution purposefully was drafted in order to address unforeseen future issues and how that fits in with competing philosophies identified in your post.


  2. Gillette shall rise again!

    Besides, we can't change the name of the blog after all this branding work we've done.

    Anyhow, after posting this I started to feel a little bit guilty for making fun of "Active Liberty" when I actually don't even have any idea what it is supposed to mean. So last night, after a couple of drinks, I downloaded the e-book and started to read it. You'll be happy to know that so far I am feeling less guilty. But you can expect a review sometime in the next year.

    In addition to the point you make, another similar weakness I see in originalism is that in many cases the only real "original intent" was: "since we can't agree, let's make this ambiguous enough so that we can all claim victory and fight it out another day." In other words, the Founding Fathers did a lot of punting, just as legislators do nowadays. I'm not sure whether this is something Scalia really acknowledges. (He may well, I just don't know.) In those cases, where the original intent was purposeful ambiguity, we need some other guidelines to resolve the inevitable disputes. And I guess that's where complicated theories of active liberty come in.

    But what do you think about Scalia's classic attack on the "living constitution," which goes something like this: "The Constitution itself explicitly authorizes the death penalty for treason. Yet some supreme court justices argue that the death penalty is unconstitutional cruel and unusual punishment. That's crazy! Any interpretative method that allows for such an absurdity must be rotten at its core."


Comments on posts older than 30 days are moderated because almost all of those comments are spam.