Introduction
Justice Breyer’s theory of constitutional interpretation in Active Liberty
has been
hailed as a thoughtful, long-awaited response to the originalism of Justice Scalia
an awkward (and possibly self-defeating) attempt to promote the integrity of democratic
deliberation by constraining the exercise of judicial review.
In this paper, I argue that
Breyer’s application of his vision of active (or what he refers to as “ancient”) liberty to
political process questions (he focuses specifically on campaign spending and political
speech) entails an attempt to assuage the countermajoritarian tension posed by judicial
review by developing what amounts to another process-based theory of judicial review
and judicial restraint.
Breyer believes that the Constitution’s “democratic objective” is informed by a
vision of active liberty that has been overlooked by jurists. This is due in no small part to
the “negative” terms in which the Bill of Rights is written. But, Breyer argues that by
stepping back and looking at the Constitution’s purpose, it becomes clear that the
protection of the negative “modern” aspects of liberty was part of a broader constitutional
goal of promoting an active vision of liberty aimed at fostering the integrity and
deliberative capacity of the democratic process. Thus, whereas John Hart Ely found
inspiration in footnote four of the Carolene Products decision,
theoretical foothold in the Founding Era.
Echoing Alexander Bickel’s celebration of the “passive virtues,”
Breyer
advocates a “modest,” deferential role for the judiciary because the larger legislature is
more able to bring a greater amount of collective wisdom to bear on the balancing of the
ancient and modern aspects of rights. But, while calling for deference to the legislature
may make sense when dealing with some areas of public policy, it does not when dealing
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Convention