Breyer 2002 Our Democratic Constitution

2023-10-11: Breyer Our Democratic Constitution (PDF) 2002

• The United States is a nation built on principles of human liberty--a liberty that embraces concepts of democracy.
• The ancient world, he added, believed that liberty consisted of "submitting to all the citizens, without exception, the care and assessment of their most sacred interests."
• [Benjamin] Constant distinguished that "liberty of the ancients" from the more "modern liberty" consisting of "individual independence" from governmental restriction.
• My lecture this evening concerns the role that this more "ancient," participatory, active liberty might play when courts interpret the Constitution, including its more "modern" individual liberty-protecting provisions. [emphasis added]
• I shall focus upon several contemporary problems that call for governmental action and potential judicial reaction. In each instance I shall argue that, when judges interpret the Constitution, they should place greater emphasis upon the "ancient liberty," i.e., the people's right to "an active and constant participation in collective power."
• At the same time, my discussion will illustrate an approach to constitutional interpretation that places considerable weight upon consequences--consequences valued in terms of basic constitutional purposes.
• It disavows a contrary constitutional approach, a more "legalistic" approach that places too much weight upon language, history, tradition, and precedent alone while understating the importance of consequences.
• I A (247)
• Three basic views underlie my discussion.
• First, the Constitution, considered as a whole, creates a framework for a certain kind of government.
• Its general objectives can be described abstractly as including: (1) democratic self-government; (2) dispersion of power (avoiding concentration of too much power in too few hands); (3) individual dignity (through protection of individual liberties); (4) equality before the law (through equal protection of the law); and (5) the rule of law itself.
• Second, the Court, while always respecting language, tradition, and precedent, nonetheless has emphasized different general constitutional objectives at different periods in its history.
• ... early nineteenth century ... establish the authority of the federal government, .... late nineteenth and early twentieth centuries ... secure participation by black citizens in representative government [and] protection of property rights .... The New Deal Court (by dismantling various Lochner-era distinctions) and the Warren Court (by interpreting the Civil War Amendments in light of their purposes to mean what they say [and] "one person, one vote" decisions.) reemphasized "active liberty."
• More recently, in my view, the Court has again underemphasized the importance of the citizen's active liberty.
• Third, the real-world consequences of a particular interpretive decision, valued in terms of basic constitutional purposes, play an important role in constitutional decisionmaking.
• The more literal judges may hope to find, in language, history, tradition, and precedent, objective interpretive standards; ... the constitutional price is too high. I hope that my examples will help to show you why that is so, ....
• I B (249)
• And the "active liberty" to which I refer consists of the Constitution's efforts to secure the citizen's right to do so [participate in democratic self-governing processes].
• To focus upon that active liberty, to understand it as one of the Constitution's handful of general objectives, ... argues for traditional "judicial restraint."
• But active liberty argues for more than that. I shall use examples drawn from the areas of free speech, federalism, privacy, equal protection, and statutory interpretation.
• In emphasizing active liberty, I do not intend to understate the great importance of securing other basic constitutional objectives, such as personal liberty--what Constant called "modern liberty"-- and equal protection.
• II A Free Speech and Campaign Finance Reform (250)
• I begin with free speech and campaign finance reform.
• And 739 contributors provided two-thirds of this sum [soft money pre-Citizens United]--making an average contribution of about $100,000 each.
• ... even though money is not the only way to obtain influence, those who give large amounts of money do obtain, or appear to obtain, too much influence.
• The end result is a marked inequality of participation.
• The basic constitutional question, is ... whether, how, or to what extent the First Amendment permits the legislature to impose limitations or ceil- ings on the amounts individuals, organizations, or parties can contribute to a campaign or on the kinds of contributions they can make.
• ... the First Amendment's constitutional role is not simply one of protecting the individual's "negative" freedom from governmental restraint.
• The Amendment helps to sustain the democratic process both by encouraging the exchange of ideas needed to make sound electoral decisions and by encouraging an exchange of views among ordinary citizens necessary to their informed participation in the electoral process. [Basis for this statement?]
• The relevance of this conceptual view lies in the fact that the campaign finance laws also seek to further the latter objective. ... broadening the base of a candidate's meaningful financial support, and encouraging greater public participation.
• For this reason, I have argued that a court should approach most campaign finance questions with the understanding that important First Amendment-related interests lie on both sides of the constitu- tional equation ... the court considering the matter without the benefit of presumptions must look realistically at the legislation's impact, both its negative impact on the ability of some to engage in as much communication as they wish and the positive impact upon the public's confidence and consequent ability to communicate through (and participate in) the electoral process.
• The basic question the Court should ask is one of proportionality. Do the statutes strike a reasonable balance between their electoral speech-restricting and speech-enhancing consequences?
• Warranty laws require private firms to include on labels statements of a specified content. Securities laws and consumer protection laws .... Health laws .... Agriculture laws .... Antidiscrimination laws .... Communications laws .... Campaign finance laws, as mentioned, restrict citizen contributions to candidates.
• Rather, virtually everyone, including "speech is speech" advocates, sees a need for distinctions. The question is, which ones?
• At this point, reference back to the Constitution's more general objectives, including active liberty, helps in two ways.
• First, "active liberty" is particularly at risk when law restricts speech that takes place in areas related to politics and policymaking by elected officials.
• Second, where ordinary commercial or economic regulation is at issue, this special risk is absent.
• What I am saying is that, in applying First Amendment presumptions, we must distinguish among areas, contexts, and forms of speech. Reference to basic general constitutional purposes can help generate the relevant distinctions.
• II B Federalism (257)
• I turn next to federalism. My example suggests a need to ex- amine consequences valued in terms of active liberty.
• The Court's recent federalism cases fall into three categories.
• First, the Court has held that Congress may not write laws that "commandeer" a state's legislative or executive officials
• Second, the Court has limited Congress's power (under the Commerce Clause or the Fourteenth Amendment) to force a state to waive its Eleventh Amendment immunity from suit by private citizens.
• Third, the Court has limited the scope of Congress's Commerce Clause powers, finding that gun possession near local schools and violence against women in local communities did not sufficiently "affect" interstate commerce.
• But constitutional principles of federalism involve active as well as negative freedom. They impose limitations upon the distant central government's decisionmaking not simply as an antirestrictive end but also as a democracy-facilitating means.
• A concrete example drawn from toxic chemical regulation .... Their regulation demands a high level of scientific and technical ex- pertise to which the federal government might have ready access ....
• ... placing greater power to participate and to decide in the hands of individuals and localities, can further both the negative and active liberty interests that underlie federalist principles. [sets up a race to the bottom as localities bid for jobs through less regulation, just as they do now via tax subsidies to companies.]
• [brings examples of state laws designed to favor states business by restricting commerce and saying that such laws need to be examined.]
• II C Privacy (261)
• I next turn to a different kind of example. It focuses upon current threats to the protection of privacy, defined as the power to "control information about oneself."
• For one thing, those who agree that privacy is important disagree about why.
• For another thing, the law protects privacy only because of the way in which technology interacts with different laws. Some laws ... trespass, wiretapping, eavesdropping, and search-and-seizure laws, protect particular places or sites, .... Other laws protect not places, but kinds of information ....
• Further, technological advances have changed the extent to which present laws can protect privacy. Video cameras .... Scanners and interceptors .... Thermal imaging ....
• The nature of the current or future privacy threat depends upon how this technologi- cal/legal fact will affect differently situated individuals.