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.