Supreme Court Justice Pursues Active Liberty
Stephen Breyer Advocates Freedom of Citizen Participation
John Adams, Founding Father and second U.S. President, envisioned a new republic and its citizens with “a positive passion for the public good.” Passions cover the entire political spectrum, and when they align in confrontation over a legal or Constitutional issue, the final arbiter is the U.S. Supreme Court.
Those passions will play out during the confirmation process of President Barack Obama’s nomination for the U. S. Supreme Court, Federal Appeals Court Judge Sonia Sotomayor. The debate in the U.S. Senate – probably a loud one – is certain to center on Sotomayor’s approach to judicial decision-making, and the principles she espouses in her legal thinking.
Justice Stephen Breyer, appointed to the Supreme Court in 1994 by President Bill Clinton, offers an accessible and engaging overview of the thinking of justices in general, and of his own thought process in specific. He states his theme and principles clearly in “ACTIVE LIBERTY: Interpreting Our Democratic Constitution” (Alfred A.Knopf, New York; 2005).
Modern Liberty Vs. Ancient Liberty
Any legal argument will be based in definitions, and Breyer begins with classic definitions of liberty. What Breyer describes as “modern liberty” encompasses freedom from government, while “ancient liberty” is the freedom to participate collectively in the government itself, what Breyer calls “active liberty” for his title and his theme.
Over time, Breyer says, modern liberty has shown its limitations when citizens become self-absorbed and are too ready to renounce their rights to sharing political power (for example, the low rate of voting in U.S. elections). Ancient or active liberty also has its limitations in placing too low a value on an individual’s right to freedom from the majority.
While Breyer’s exploration follows the path of active liberty, he forcefully advocates a judicial approach that “hesitates to rely upon any single theory or grand view of law, of interpretation, or of the Constitution.” The judges’ priority, he says, should center on a search for the purpose in the Constitutional areas being considered for interpretation.
Does Money Equal Speech?
Breyer maintains that all judges consider the same elements in their interpretations: Language; History; Tradition; Precedent; Purpose, and Consequences. Their differences –and these are critical – will arise from the emphasis each justice places on each element.
Breyer offers a detailed map of his own possible direction in considering the issue of political campaign contributions, and whether the money donated constitutes free speech. The Constitution’s renowned First Amendment states that “Congress shall make no law . . . abridging the freedom of speech. . .” The question: in do campaign finance laws, do restrictions on contributions constitute restrictions on speech? In politics, does money equal speech?
Interpreting The First Amendment
Following Breyer’s thinking in a hypothetical example of this legal question:
- The democratic objective of the First Amendment is facilitating a conversation among ordinary citizens that will encourage their informed participation in the electoral process, so that citizens can shape public opinion and thus, government;
- Campaign finance laws seek to further a similar objective;
- Laws seek to democratize the influence that money can bring to bear upon the political process, thereby building public confidence in that process, broadening the base of a candidate’s meaningful financial support and encouraging greater public participation;
- The above considerations do NOT automatically make campaign finance laws Constitutional, with democratic objectives on both sides of the equation;
- Modern liberty aims to protect citizens’ speech from government interference, while active liberty seeks promotion of a democratic conversation;
- The Court has recognized that contribution limits aim at “protecting the integrity of the process;”
- As restraint of trade can sometimes be lawful because it furthers rather than restricts competition, so, too, restricting political speech can sometimes be reasonable in furthering rather than restricting the competition of ideas;
- Balancing consequence and proportionality, the negative impact on the wealthy who choose to spend money for political speech, must be balanced against the positive impact on the public’s confidence in, and ability to communicate through, the political process;
- The Constitution was written by the Founders with the ideals of sharing political authority, of the participation of the people in democratic processes, and of delegating authority to a democratically elected government.
The final issue will be whether rationality is brought to bear on a solution that reconciles the two passionate viewpoints. The newly-constituted Supreme Court could have an answer once its next session convenes in October 2009.
U.S. Supreme Court Justice Stephen Breyer
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Examining Citizens' Freedom to Participate
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