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Wednesday, August 24, 2005

Breyer and Ely?

Jim Lindgren posts an excerpt and review of the WSJ's story on Justice Breyer's new book. Lindgren thinks that it sounds a lot like Ely's Democracy and Distrust. Here are the two pieces he wants to equate:

From the WSJ:
By contrast [with Justice Scalia's book on interpretation], 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.

. . .

A judge's task, he says, is construing the Constitution in a way "that helps a community of individuals democratically find practical solutions to important contemporary social problems." He calls that freedom to participate in government "active liberty," a complement to passive liberties that protect the individual from interference by the government.
From a review of Ely's book in 1980:
Ely's theory of judicial review focuses on allowing everyone equal input in the representative part of the government and free participation in the political process. If the government is a fair representation of the beliefs of the nation, the Supreme Court does not need to make value judgments with one exception, which is the other half of the theory. The Court must not allow the majority to take advantage of the minority. Ely admits that both of these require certain value judgments by the Court; however, the values of fair representation and protecting minorities were invoked by the Founding Fathers. For example, James Madison wrote in The Fe[de]ralist no. 51, "It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. If a majority be united by a common interest, the rights of the minority will be insecure."
I of course haven't read the book, but I don't buy the comparison. First, Ely's views are based on a construction of the Constitution where the 9th Amendment and the Privileges and Immunities Clause actually vested power in the judiciary to expand rights. I have seen no similar textual/structural justification from Justice Breyer in his opinions. Secondly, Ely's view of the Constitution is all about including "out" groups so that they have fair participation in the political process. Justice Breyer's pragmatism is more of a "equal partner" model of judicial review where the judiciary is an active participant in the development of law. This was most clearly evident in his Booker opinion.

In any event, I'm excited for the book. It's hard to see any logic or theory in Justice Breyer's jurisprudence, but I guess we'll see.


Blogger T. More said...

As with the post from Balkin you recently directed us to, a certain T. More has written sterling comments to this Lindgren post as well. Sorry for my delinquency. I shall be posting today.


3:34 PM  

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