Active Liberty by Mr. Justice Breyer, Part I

GUEST: Stephen Breyer
VTR: 12/12/05

I’m Richard Heffner, your host on THE OPEN MIND. And I’m particularly pleased that I was not only right, but presciently so, when exactly a dozen years ago, I introduced to you the then Chief Judge of the United States Court of Appeals in Boston as having written “a very short but enormously consequential” book, “Breaking the Vicious Circle: Toward Effective Risk Regulation”.

For Stephen Breyer, now Associate Justice of the Supreme Court of the United States has just written another very short and, for many more than just professional high court watchers, an undoubtedly even more consequential volume titled “Active Liberty”, published by Alfred A. Knopf.

Of course, it’s long been clear that Mr. Justice Breyer does not subscribe to the more literal, less textualist approach to constitutional issues shared by some of his Brethren. Perhaps best put, his point about high court interpretations of such issues is that “…a more literal approach has serious drawbacks.”

As he writes, “Whatever ‘subjectivity-limiting’ benefits a more literal, textual, or originalist approach may bring, and I believe those benefits are small, it will also bring with it serious accompanying consequential harm.”

First, then, let me first ask Mr. Justice Breyer to identify that harm and to define “Active Liberty”. Fair question?

BREYER: It is a fair question. The kinds of harm that I’m thinking of are the harm that occurs when you take complicated areas of law and you read the text, and you say, “Well I’ll think about what that text means” and you don’t look to why the person wrote the text.

That could be true if you wrote me a letter. Or I write a letter to someone and they get it and they pay no attention to me, what I might want or what the content shows I wanted. They just read the words. Well words are tricky things. And if you try to be literal you’ll cut the connection between what the court says a law means and what the people who wrote that law wanted it to mean.

And that’s a bad connection to cut. Because ultimately the people who wrote that law are responsible to the people in general. And they have to be held accountable and once you cut the connection, no one knows who’s responsible. I’m trying to think of a good example, I gave some in my book, particularly with statues.

Famous example that was given in law is (laughter) … there’s a little sign in the park and it says, “No vehicles in the park”. Well, does that mean that you shouldn’t be able to put a jeep as a monument say to World War II. If you’re literal, a jeep is a vehicle. Doesn’t say anything about monuments one way or the other.

But you couldn’t possibly interpret that correctly if you were being literal. So you look to the purpose, you look to a lot of other things.

HEFFNER: Now that’s commonsense.

BREYER: Mmmm.

HEFFNER: How can it be challenged?

BREYER: Why do … why is there this division, why is there the division between people who want to emphasize text and the people who want to emphasize purposes. Like me … I do purposes and consequences.

In the Supreme Court particularly I notice, others notice that we have questions that are very uncertain on the law. What does the word “liberty” mean in the 14th Amendment?

You can read it 50 times; it’s not going to tell you the answer. Some parameters, but it won’t tell you exactly how it applies to free speech or how it applies … right to die … right to assisted suicide law. They’re not written there. So when you get a very difficult open question of law … I think all judges, whether they call themselves literalists, or whether they call themselves something else, or whatever they want to call themselves. All of them look to the same kinds of legal tools to get the answer.

First, everybody reads the text. I’ll read it. You would read it. Second, everybody looks to the history of the text. What did the framers mean when they said “Unreasonable searches and seizures in the 4th Amendment”. What did they mean? History.

The tradition. What does the word “cruel and unusual punishment” come to mean over time? Tradition. Precedent. What do the cases say? That’s four.

Five. Purposes. What was the value they were trying to protect when then they wrote into the Constitution “unreasonable searches and seizures”? People’s privacy. Look at that value.

And six. The consequences. If I decide the case this way, what happens to the value? If I decide the case that way what happens to the value? All right. So we all believe these six are relevant.

Now some people, who I call more “literalists” think the last two … consequences … purposes … while relevant … be careful, don’t look at those too much. Or otherwise the judge will just do whatever he wants. Let’s look to these four, they’re secure.

And other people, me included, say, “Look at those last two. I’m not saying the other four are irrelevant, they’re very relevant, but look at those last two, they’re very important, because if you don’t look at those last two you will not understand what the Constitution or the statutes are getting at. And you won’t be able to interpret them true to their purposes. That’s the divide.

HEFFNER: And how do we find people falling down on one side, or standing up on one side, rather than the other? What distinguishes them, in your estimation, as you look back over the court in its more than 200 years of history?

BREYER: You know, I think … it’s so hard to know people at different times. In a way it’s not necessarily a traditional Conservative, Liberal breakdown. We’re born into a particular time. I’ve more or less absorbed the world I’ve grown up in. And I think it might be a matter of temperament.

HEFFNER: Temperament?

BREYER: Yeah. I’m prepared …

HEFFNER: Individual Justice’s temperament?

BREYER: In a way. Some people like security. And the more secure … if you like security I think you’ll be attracted to the idea that you can find clear answers, rules in the text. We’ll issue rules. We’ll interpret this with rules. There is an answer. The answer is. That word means something. I’ll find it out. And then I’ll have a rule. Now that’s … that’s secure. In a sense.

If you’re more prepared to live with uncertainty, and I probably am … I think life is blurred, hard to get certain rules, very hard to be careful, don’t go too far, too fast. Life will come back … surprises. It will bite you that rule. You’ll think you’re accomplishing something, it will turn out the opposite … be careful.

Now if you have that kind of sort of fuzzy temperament, you might be more attracted to the more case by case, the more uncertain, but the more consequential, purposive approach. I can’t prove that.

But ultimately, I think both sets of judges today are trying to find ways, in part, to control the subjective view of the judge … a judge should follow the law … and I hope both are trying to interpret the law in ways that will be true to the will of the people. Expressed through their legislators.

HEFFNER: You know as I, as I have been reading your book and re-reading your book, “Active Liberty”, it is that notion of the will of the people, I couldn’t help but think of Carl Sandburg, I couldn’t help but think of Walt Whitman, I couldn’t help but think of the people … yes … that there is something so fundamentally democratic, looking for the voice of the people in your book.

And yet, as I’ve studied you over the years and I remember our programs … a dozen years ago … I would have thought that Stephen Breyer was the last person in the world who could embrace such a … not free wheeling …

BREYER: Mmmm.

HEFFNER: … but such a “let the people have their way, if you can” within the framework of certain limitations, prohibitions.

BREYER: That’s right. Because you say, well … what I’ve written before, I’m sort of technological elitist …

HEFFNER: Yes.

BREYER: (Laughter)

HEFFNER: Yes. Precisely.

BREYER: So how you do … what, what … how do you reconcile those two things?

HEFFNER: And I’m asking you that question.

BREYER: Well, if you, if you go back it’s a rather deep question. The world we live in today is not the world that Jefferson lived in. It’s not a world of farmers and small merchants. It’s not a world of artisans. It’s a world where we depend on technology. There are chemicals. They pollute. They’re necessary. There’s technology …communications all over the world, computers … probably you understand them better than I. Our children …

HEFFNER: Hardly.

BREYER: Our children understand them. It’s a … the things in this room … it’s plastic … wood, not wood so much anymore … metal. I mean everything is complicated. And that is the world we live in.

And people can say how sad it is, but that’s not the problem. The problem is whether it’s good or whether it’s bad. That’s what we live in. And therefore we have the question … how do we have legitimate government in this world? And what I do think … maybe it’s Lowell High School, public high school, San Francisco, 1955 … where I grew up …

HEFFNER: I was told you would bring that into every conversation.

BREYER: Because I feel it’s terribly important … the West, San Francisco … the, the public schools, they … I think … are a way of shaping a person … or where at that time … to believe very much in democracy.

So now we have a problem. The world’s technocratic, time is limited, not every person can understand the details of chemical substances and sulfur dioxide. So we have to have a system where power is delegated to those who will decide it.

So the great problems, I think, of our time … in government … what decisions do we delegate to experts? How do we keep a check on those experts? We, being the people. What decisions do we make where? Do we make the decision about chemicals in the environment in San Francisco or in Des Moines, or in Washington, DC? And the answer will be … some here and some there. We have to divide the question into complex parts, and we get some help from Washington, but some is left in San Francisco.

Same problem in Europe. Brussels? Or Naples? Same problem in China. Ask them sometimes. How do we keep a central government that has some control over the fringes? How do we divide between experts and legislators and the people who elect them? How do we control the regulators? How do we divide between the locality and the national or state center of authority?

There will not be clear definite across-the-board answers. It’s going to turn on case by case, area by area. And, of course, what I’m trying to do here, in that part, is to explain, a little bit how we’ve come to make that decision in the United States.

We have legislators who decide to delegate to administrative agencies. Those legislators are fulfilling, or trying to fulfill hardly detailed, but very general purposes. They go and explain to their electorate … “Vote for me and I’ll take this attitude or I’ll take that attitude” and that’s what people vote for and then they transform that into delegations of authority to experts and those experts should stay within the boundary. And the court is there to police them.

So even that complex system of modern government can be explained in terms of and kept within a framework that sees power as flowing from the people, a check, a control. But, of course, we have to bring the experts into it.

HEFFNER: But, of course, too, the people are further and further removed …

BREYER: MmmHmm.

HEFFNER: … from expert understanding.

BREYER: They are.

HEFFNER: And their choice of the people who will represent them are further and further removed.

BREYER: Yes.

HEFFNER: Now how do we work within that frame?

BREYER: Well, we have to say there are certain limitations on the world. I, I … you know … I mean, there we are, we only have two arms, and we have to go to sleep at night and one of the … and don’t think you’re going to solve the problem simply by saying, “Well, we’ll give more and more power to make the detailed solution” to the average American.

That won’t work. Why not? You want the average American to vote on whether the Army should take Hill 403 by going left or by going right? No one can understand that. Nobody would even think about that. And if people do try to exercise too much detailed control, technical decisions, over those to whom the authority has been delegated … the experts … if they try to, what they’ll find is they don’t get their way.

It doesn’t happen, because this neighborhood didn’t know enough about “S.O.X” and it thought it was meaning less and it ended up, because it tried to control the technical details, with more.

HEFFNER: But at what point then, do you draw that line …

BREYER: MmmHmm.

HEFFNER: … between … well, I was going to use the word “technocrat” and I shan’t …

BREYER: No. Technocrat’s fine.

HEFFNER: Well, it has a pejorative …

BREYER: MmmHmm.

HEFFNER: … sense to it, but where do you draw the line between the …those who are in our age …

BREYER: MmmHmm.

HEFFNER: … technologically equipped to make those decisions and those who are going to be impacted by those decisions and their will …

BREYER: Oh, there’s only one way to draw it. The only possible way to draw it, in a democracy is to elect people who will try to draw the line and if they make a mistake …

HEFFNER: Yes.

BREYER: … and the results are results we don’t like, we fire them at the voting booth and we elect some others.

HEFFNER: And where are the courts in all of this?

BREYER: The courts are there to see that the decisions that have been made by the elected representatives in respect to this among others … who is going to decide what. That’s one of their decisions.

HEFFNER: Right.

BREYER: We’re there to see that those decisions are respected. We’re there to see that the decisions that the legislator made, even in respect to who decides what … is a decision that is carried out. We’re carrying out their will and they are ultimately responsible to the people.

Well, that sounds a little complicated … I’m sure it does sound a little complicated and for those who think it is too complicated …

HEFFNER: Yeah.

BREYER: … I say we’ll suggest another one. (Laughter) That’s the … that’s the … and there might be … I don’t mean it totally facetiously.

HEFFNER: Do your colleagues on the bench have another way? In this regard?

BREYER: Let’s see.

HEFFNER: To this question.

BREYER: This is a pretty interesting question for me, it’s a … it’s a complicated question, it’s a difficult question, I think it’s an important question.

Who controls the regulators? How do we control the regulators? The fairest argument I think against what I’m saying would be “That’s all too complicated forget about it, we’ll just make some rules here. (Laughter) And people will follow the rules. And that will be good enough.”

Maybe. But those rules will lack a democratic legitimacy; those rules will be rules that courts made up. I don’t like courts to make up rules unless I can trace it back to a set of principles or a system that ultimately grows out of the people.

HEFFNER: And yet in our times, as you concede or insist, the people seem to be less and less willing to master … a) to master the information needed and b) to express their will by going to the polls.

BREYER: Yeah. Yes. And that’s, that’s really what this … you, you, you have previously taken a theme that’s there buried in this book and brought it back to that other book that I wrote many years ago. Quite right. Now you’re really focusing on the main point of this book.

HEFFNER: And how do you deal with that?

BREYER: And the main point, I say “Why ‘Active Liberty’?” And what’s the point. “Active Liberty” I’ve picked that title and I picked that approach because I thought it expressed what the Constitution seems to be about. Now this is … shall I digress a little bit?

HEFFNER: Please.

BREYER: I’m going to get back to your question. Sandra O’Connor, my colleague, Tony Kennedy, my colleague and I were at a meeting where Vartan Gregorian, who is interested in the education … he’s head of the Carnegie Foundation … he was trying to work out, or get us to help him work out a curriculum for high school students. What should they learn about the Constitution?

And they had done a series of surveys of lawyers … what’s the most important part of the Constitution? If you have to choose one part, the most important part … what should it be?

Some said the First Amendment. It may have been mostly journalists, I don’t know. (Laughter) But the First Amendment is important. Some said “equality” and that is important, that is in the Constitution. Others said, “privacy”. Not too many said what we three said, “But this is what the Constitution is about.” What’s that?

What the Constitution is about and the more you’re in my job the more you see it. The Constitution is about creating institutions of government that are democratic. It is a way of translating the will of the people into statues, into rules for their living together that are democratic.

Now we all would say it’s a certain kind of democracy. It’s not democracy pure and simple. It is a democracy that protects people’s basic liberties. The majority can tyrannize, too. We all learned that in World War II if not before. We want to protect fundamental human rights and the Constitution does that.

It does insist on a degree of equality. It does divide power, it divides power horizontally (executive, legislative, judicial) … vertically (states, federal government) … divides power.

It insists on a rule of law. So it’s a special kind of democracy that it creates, but it does create democracy. And all of us who work with this document every single day, said, “But that’s what it’s about”.

So, a thought found in a lecture by Benjamin Constant about a 150 years ago or so, the Greeks and the Romans thought of democracy as really what liberty was. If you lived in Athens, or you lived in Rome at the time of the Republic, democracy, liberty is participating in the government. Now they didn’t let slaves participate … they were a lot who was excluded, as they were at the time of the founding of our Constitution. But within those who were not excluded, participation in government, sharing of power was what they saw by liberty. That’s why … “Active Liberty”.

Now there’s a different kind of liberty which is also extremely important, which is liberty from … even the majority tyrannizing the minority. That my book wants to say, “Don’t forget the first. Don’t forget it. Because as I see the Constitution every day, I can tell you it foresees the average American participating in the government.

And I don’t know what else will happen if they don’t do it. But I know the government won’t work. Because that’s the kind of government we’ve set up.

People have to participate … or what? Or maybe we’ll have … maybe we’ll have this, this kind of government that you used pejoratively … and it should be pejorative in that instance. We could have a government where the bureaucrats ruled.

You could have a form of “bureaucracy” … democracy, aristocracy and bureaucracy. You could. But the, the real guarantee against that is that people get interested. That they participate, that they take an active part in the government. And this book tries to say that is an important part of the Constitution.

HEFFNER: It seems to me, Justice Breyer, that not only does “Active Liberty” say that … but you’re writing it is an expression of your desire to involve more and more people in the process. Is that fair?

BREYER: That is true. That is true. Don’t you think that it is important to do that?

HEFFNER: Absolutely. But I’m also interested in Vartan Gregorian’s request of you …

BREYER: MmmHmm.

HEFFNER: … and your colleagues, because I know of his interest in what we do in our schools …

BREYER: MmmHmm.

HEFFNER: … and we don’t do very much of anything along these lines. You and I remember … I particularly … the civics courses …

BREYER: Yes.

HEFFNER: Well, how do we … how do we … what do we now …

BREYER: Oh, you could … it’s hard to run the public school system. My father worked in the public schools in San Francisco for 40 years. And it’s harder now than it was then. I met … a few years ago … a Superintendent … a man who was then Superintendent of Schools in San Francisco … and he said, “You know, I think when your dad was here, Stephen,” he said, “I think it was maybe a little easier.” Maybe it was.

You have to take the students, they’re impressionable and, and explain to people what the government’s like. We used to go on field trips to Sacramento, we might have remembered mostly the stops at hot dog places, I think. But we went to see the legislature in action; we had 12th grade civics. We learned something about it. Now that’s a question of the will to teach and that’s not directly my job but I can encourage people.

HEFFNER: You say it’s not your job, and I’m going to take a break in a moment because … we’ve come to the end of this program …

BREYER: Mmmm.

HEFFNER: … believe it or not, and you’ve promised me that you’d sit still and let us go on, so …

BREYER: Yes.

HEFFNER: … let me thank you for joining me today and perhaps, between now and next week, people will run out and buy Stephen Breyer’s “Active Liberty”, then we’ll have a more intelligent based conversation. And thanks so much for going me today. And thanks, too, to you in the audience. I hope you join us again next time, and if you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as an old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.

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