Posted 9:35 AM by Robert

In a book slated for release next month, Justice Breyer -- among the more liberal members of the court -- gives a detailed insight into his philosophy of deciding cases, namely that the Constitution should be viewed in light of its overarching goal, which he sees as creating a participatory, democratic society. In the process, he offers a rejoinder to a longtime intellectual opponent, Justice Antonin Scalia, who advocates "originalism," or a more literal interpretation of the Constitution's meaning at the time of its writing. ... Justice Breyer's "Active Liberty" contends that judges can undercut the democratic system the Constitution's Framers sought to build if they adhere too literally to legal text and disregard the "real world" consequences of the decisions they render.

Doesn't that sound nice? I'm so anxious to read Justice Breyer's book, because he sounds like a man who really wants to get big things done right now.

And nothing could be more consistent with creating a participatory, democratic society than creating a United States Senate whose Senators are allocated among the states in proportion to their populations! Allocating just two Senators to both California (population about 35 million) and Wyoming (population under 1/2 million) is utterly inconsistent with creating a participatory, democratic society, since under the present system each Wyoming voter has seventy times as much representation in the Senate as does each California voter.

So it's clear as crystal that Justice Breyer's "living Constitution" approach must lead him to strike down the old, nasty "originalist" allocation of just two Senators to each state. He might argue in his sweeping and historic decision that the "originalist" allocation is inconsistent with, say, the "due process clause" of the Fifth Amendment. That is, he might argue that if he feels the need to cite any particular clause in the Constitution at all. The Fifth Amendment was enacted after the original Senate allocation, so why not just argue that the Fifth Amendment has evolved so that it is now just not right (we have to create that participatory democracy!) to preserve the original allocation? Why, for the Court to uphold the "originalist" allocation would adhere too literally to legal text and disregard the "real world" consequences of the decisions they render. That's essentially how, in its famous "one person, one vote" holdings, the Court justified striking down the "little federal" systems of the states that allocated state legislative representation with mechanisms other than simple population (the Court mostly cited the 14th amendment in those cases, but various "incorporation doctrine" holding mean there's no real difference between applicable 5th and 14th amendment principles now). Of course, citing to such Constitutional "clauses" is just a remnant of "originalism" anyway. Why should the progressive Supreme Court Justice on the go care about some bit of ink on some old paper, when he can construe the Constitution by turning to the internet to survey the hip, happening world of European legal developments, as Justice Breyer also likes to do?

The Court's prior more radical revisions of the Constitution have often been met by conservative outcries that such changes should only be made through amendment of the Constitution (or amendment of the appropriate state constitution), not Supreme Court fiat. For example, this argument was broadly advanced following the Court's "one-person, one vote" decisions. But many Court supporters then countered (and still argue) that the Court's "one person, one vote" holdings were made all the more urgent because the state constitutions made such amendments so difficult. Article V of the original Constitution - the article that sets out the amendment process - specifically provides that no state, without its consent, shall be deprived of its equal suffrage in the Senate. So a believer in a "living Constitution" such as Justice Breyer can only consider the Article V prohibition as establishing an even greater urgency that the Supreme Court act decisively by reapportioning the United States Senate. That Article V expressly prohibits such actions through the amendment process should be no restriction on such Supreme Court action, any more than any the "original meaning" of any other clause in the Constitution should restrain (or, in recent years, has restrained) the growth - some might say "metastasis" - of Justice Breyer's style of tumorous "living Constitution." And, anyway, the Court and supporters of its more radical actions - such as the "one person, one vote" cases - always maintain that those cases don't amend the Constitution at all, they just embody the Constitution's living, growing nature. So Article V doesn't apply - and it would be no bar to a Court-order reapportionment of the Senate, at least to any Justices who see the Constitution as creating a participatory, democratic society, who refuse to undercut the democratic system the Constitution's Framers sought to build if they adhere too literally to legal text and disregard the "real world" consequences of the decisions they render.

Yep, I can hardly wait to read "Active Liberty." There's always the chance that the Wall Street Journal misunderstood which document Justice Breyer is construing in his book. It was the Port Huron Statement (1962) of the Students for a Democratic Society, not the Constitution, that presented a vision of a movement to establish “participatory democracy.” Some might say that there was lots of "Active Liberty" in that group - although "Active License" better carries the meaning.