Working Paper No. 06-08:
"Active Liberty" and Judicial Power: What Should Courts Do to Promote Democracy?

Author(s):

Ilya Somin

Date Posted: 2006

Availability:
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Abstract:

Justice Stephen Breyer's new book Active Liberty: Interpreting Our Democratic Constitution, is an important contribution to the longstanding debate over the relationship between democracy and judicial review. Breyer argues that judicial power should be used to facilitate citizen engagement in the democratic process rather than undermine it; he claims that judges should promote democracy by explicit consideration of the practical consequences of their decisions. As many previous scholars have argued, the 'countermajoritarian difficulty' caused by judicial review is minimized and even reversed in situations where judicial overruling of statutes actually promotes democratic participation in government.

Breyer's contribution to the debate is important and on some points convincing, particularly in his critique of some forms of originalism. However, the Justice is far less persuasive in defending his own approach to democracy and judicial review. This Review focuses on Justice Breyer's vision of the relationship between democracy and judicial power. Unfortunately, that relationship is considerably more complex than Active Liberty lets on. In some instances, a fuller understanding of the connection justifies results very different from those Justice Breyer argues for.

Part II shows that Breyer's claim that judges should explicitly weigh consequentialist considerations in making decisions may lead the judiciary well beyond its field of competence. This point is dramatically illustrated by the sometimes superficial treatment of democracy in Justice Breyer's own book, which ignores tensions between different conceptions of democracy and often fails to consider relevant empirical evidence.

I also contend that a sounder judicial approach to democracy would look more favorably upon judicial limits on the power of the federal government in order to foster federalism. Such efforts could, at least at the margin, strengthen the federal government's accountability to voters by limiting the impact of political ignorance. They could also impose accountability on government by strengthening citizens' ability to 'vote with their feet' instead of just at the ballot box.

Part III assesses Breyer's critique of originalism. While the Justice is right to point out some key flaws in originalist jurisprudence, the force of his critique is weakened by his failure to make crucial distinctions. Breyer's analysis conflates textualism and originalism. Yet these two modes of interpretation are distinct and we could coherently embrace one while rejecting the other. Many of Breyer's criticisms of originalism do not necessarily apply to textualism. Breyer focuses primarily on what scholars call 'original intent originalism,' which seeks to divine the specific intentions of the Framers. He largely ignores the more compelling (and today more widely accepted) approach of 'original meaning originalism,' which holds  that judicial interpretation should be based on the generally understood public meaning of the Constitution's words at the time of enactment.

Ultimately, Justice Breyer is right to claim that the judiciary may have a valuable role in promoting democracy. But his prescriptions on how it should achieve that goal are far less compelling.