by CR Sunstein · 2005 · Cited by 78 — yalelawjournal/review/justice-breyers-democratic- Active Liberty, by Justice Stephen Breyer, is in this tradition; but it is also marked by a heavy.

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CHICAGOJOHNM.OLINLAW&ECONOMICS WORKING PAPERNO.267(2DSERIES )PUBLICLAWANDLEGALTHEORYWORKING PAPERNO.111JUSTICE BREYER™SDEMOCRATIC PRAGMATISM CassR.SunsteinTHELAWSCHOOLTHEUNIVERSITYOFCHICAGO November2005 Thispaper canbedownloaded without chargeattheJohnM.OlinProgram inLaw andEconomicsWorking Paper Series: du/Lawecon/index.htmland atthePublicLaw andLegal TheoryWorking PaperSeries: cademics/publiclaw/index.html andTheSocial Science Research NetworkElectronicPaper Collection:

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Preliminary draft 11/5/05 All rights reserved Forthcoming, Yale Law Journal Justice Breyer™s Democratic Pragmatism Cass R. Sunstein* Abstract There have been many efforts to reconcile judi cial review with democratic self-government. Some such efforts attempt to justify judicial revi ew if and to the extent that it promotes self-rule. Active Liberty, by Justice Stephen Breyer, is in this tradition; but it is also marked by a heavy pragmatic orientation, emphasizi ng as it does the need for clo se attention to purposes and to the importance of consequences to legal interpretation. Its distinctiveness lies in its effort to forge close connections among three seemingly disparat e ideas: a democratic account of judicial review; a purposive understanding of legal texts; and a neo-pragmatic emphasis on consequences. Breyer™s argument is convincing inso far as it challenges fio riginalistfl approach on pragmatic grounds. It is more vulnerable insofa r it downplays the inevitable role of judicial discretion in the characterization of purposes and the evaluation of consequences. Those who emphasize consequences, and active liberty, might well end up embracing textualism, or even broad judicial deference to legislative majorities. Moreover, it is not simple to deduce, from the general idea of fiactive liberty,fl concrete conclu sions on the issues that concern Breyer, such as affirmative action, campaign finance reform, priv acy rights, and commercial advertising. Many competing approaches to these issues, and to int erpretation as a whole, can also march proudly under the pragmatic banner. * Karl N. Llewellyn Distinguished Service Professor, Law School and Departme nt of Political Science, University of Chicago Law School. This essay grows out of Cass R. Sunstein, The Philosopher-Justice, The New Republic (Sept. 19, 2005); I have substantially revised and expanded the discussion here, and in some ways the basic orientation has shifted. I am grateful to Adrian Vermeule for extremely valuable comments on a previous draft.

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2 The pragmatic method is primarily a method of settling metaphysical disputes that otherwise might be interminable. Is the worl d one or many?Šfated or free?Šmaterial or spiritual?Šhere are notions either of which may or may not hold good of the world; and disputes over such notions are unending. The prag matic method in such cases is to try to interpret each notion by tracing its respective practical consequences. What difference would it practically make to any one if this notion rather than that notion were true? ŠWilliam James 1 A Concise Statement of the Task In interpreting a statute a court should: 1. Decide what purpose ought to be attributed to the statute and to any subordinate position of it which may be involved . . . . It should assume, unless the contrary unmist akably appears, that the legislature was made up of reasonable persons pur suing reasonable purposes reasonably. ŠHenry Hart and Albert Sacks 2 I. Preliminaries: Judicial Review and Democracy Throughout the nation™s history, many of the most prominent constitutional theorists have tried to reconcile judicial review with the national commitment to democratic self-rule. They have argued that if the Supreme Court acts in a certain way, it can coexist comfortably with democracy after all. 3 Much of this work is highly conceptualŠmore theoretical than pragmatic, in the sense that abstract ideas, rather than concrete consequences, are in the foreground. Early in the twentieth century, for exam ple, James Bradley Thayer emphasized democratic considerations in order to argue that the Suprem e Court should strike down legislation only fiwhen those w ho have the right to make la ws have not merely made a mistake, but have made a very clear one,Šs o clear that it is not open to rational 1 Williams James, What Pragmatism Means, in Pragmatism (1907). 2 Henry Hart and Albert Sacks, The Legal Proce ss 1374, 1378 (William Eskridge and Philip Frickey eds. 1994). 3 Some approaches, of course, insist that a constitu tional democracy imposes constraints on democratic self-rule, not reducible to self-government in any way. See, e.g., Ronald Dworkin, Freedom™s Law (1996).

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3 question.fl4 In Thayer™s view, fiwhatever choi ce is rational is constitutional.fl 5 Thayer believed that courts should take the same a pproach to challenged legislation that juries take to criminal defendants; thus he argued that the S upreme Court should uphold the actions of the elected branches unless their invalidity is fivery pl ain and clear, clear beyond a reasonable doubt.fl6 Thayer™s view was largely followed by Oliver Wendell Holmes, perhaps the greatest figure in the hist ory of American law, who generally agreed with his plea for judicial deference to the legislature. In Holmes words, fiIf my fellow citizens want to go to Hell I™ ll help them. It™s my job.fl 7 Unlike Thayer, Holmes was inspired by pragmatism, 8 but his own arguments, at least as they appeared in judicial opinions, were quite abstract. 9 In the period after Franklin Delano Roosevelt™s New Deal, Thayer™s approach had a significant role on the Supreme Court, 10 embraced as it generally was by Felix Frankfurter, 11 Holmes™ disciple. 12 To many people, the idea of judicial defe rence to the elected branches lost much of its theoretical appeal in the 1950s and 1960s, when the Supreme Court, under the leadership of Chief Justice Earl Warren, was invalidating school segregation, 13 protecting freedom of speech, 14 striking down poll taxes, 15 requiring a rule of one person, one 4 James Bradley Thayer , The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893) 5 Id. 6 Id. 7 Holmes to Laski, March 4, 1920, Holmes–Laski Letters , vol. 1, p. 249. The major exception to Holmes™ posture of restraint was the area of free speec h. See, e.g., Abrams v. United States, 250 US 616 (1919) (Holmes, J., dissenting). 8 See Louis Menand, The Metaphysical Club (2002). 9 See, e.g., Lochner v. New York, 198 US 45, XX (Holmes, J., dissenting). We can, however, find a highly compressed pragmatic claim in Holmes™ suggestion that the Constitution fiis made for people of fundamentally different views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the Un ited States.fl The key pragmatic phrase here, and the best one, is the reference to fithe accident of ou r finding certain opinion natural and familiar or novel and even shocking.fl The key pragmatic word, and the best one, is fiaccident.fl 10 See, e.g., West Coast Hotel v. Parrish, 300 US 379 (1937). 11 See West Virginia School District v. Barnette, 319 US 624 (1943) (Frankfurter, J., dissenting). 12 There is a resemblance between Holmes™ approach and the embrace of Schumpeterian democracy in Richard A. Posner, Law, Pragmatism , and Democracy 143-154 (2003). Note that Posner rejects what he sees as romantic or aspirational accounts of democracy ; he sees politics in deromanticized terms, fias a competition among self-interested politicians, constituting a ruling class, for the support of the people, assumed also to be self-interested, and to be none too interested in or well informed about politics.fl Breyer™s more aspirational conception of politics is in a very different spirit; see in particular the emphasis on participation (pp. 134-35). 13 See Brown v. Bd. of Educ., 347 US 483 (1954). 14 See Brandenburg v. Ohio. 395 US 444 (1969).

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5 Bush praises fistrict construction,fl many pe ople take him to be embracing originalism. 25 Originalists like Scalia do not follow Thayer™s approach, because they are quite prepared to strike down legislation that violates th e original understanding. Originalists do not defend Ely™s idea of firepresentation-reinforcin gfl judicial review. But in their own way, originalists too prize democracy. They emphasize that the Constitution was ratified by We the People, who have sovereign authority, and they want to li mit the discretion of federal judges, who are after all unelected. 26 It is true that those who ratified the Constitution are long dead, and this point might be thought to create a real problem for originalists who attempt to defend their approach on democratic grounds. WhyŠin the name of self-government?Šshould current citizens be bound by those who lived long ago? But democracy is central to originalist thinking about constitutional law. 27 Above all, originalists fear that if judges do not follow the original understanding, th ey will be creating the Constitution anew, because they will give it the content of th eir own choosing. Originalist arguments are not always pragmatic in spirit. On the contra ry, they can be highl y abstract, stressing considerations of legitimacy. 28 But some originalists are aw are that their approach would have dramatic and perhaps intolerable consequences. 29 Inspired by pragmatic considerations, they are willing to attempt to reduce that risk. 30 25 Mona Charen, Do-Gooders: How Liberals Hurt Th ose They Claim to Help (and The Rest of Us) (2004). 26 See Scalia, A Matter of Interpretation, supra note. 27 See Cass R. Sunstein, Justice Scalia™s Democratic Formalism, 107 Yale LJ 529 (1997). 28 See Robert Bork, The Tempting of America (1985); some of the arguments in Scalia, A Matter of Interpretation, are in the same vein. Consider this passage: fiThe principal theoretical defect of nonoriginalism, in my view, is its incompatibility with th e very principle that legitimizes judicial review of constitutionality. . . . I take the need for theoretical legitimacy seriously, and even if one assumes (as many nonoriginalists do not even bother to do) that the Constitution was originally meant to expound evolving rather than permanent values, . . . I see no basis for believing that supervision of the evolution would have been committed to the courts. At an even more general theoretical level, originalism seems to me more compatible with the nature and purpose of a Constitution in a democratic system.fl 29 See Scalia, The Lesser Evil, supra note: fiI can be much more brief in describing what seems to me the second most serious objection to originalism: In its undiluted form, at least, it is medicine that seems too strong to swallow. Thus, almost every originalist wo uld adulterate it with the doctrine of state decisis– so that Marbury v. Madison would stand even if Professor Raoul Berger should demonstrate unassailably that it got the meaning of the Constitution wrong. . . . But stare decisis alone is not enough to prevent originalism from being what many would consider too bitter a pill. What if some state should enact a new law providing public lashing, or branding of the right hand, as punishment for certain criminal offenses? Even if it could be demonstrated unequivocally that these were not cruel and unu sual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved them, I doubt whether any

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6 II. Pragmatism, Consequences, and Active Liberty As a law professor at Harvard Law Sc hool, Stephen Breyer specialized in administrative law. His important work in that field was marked above all by its unmistakably pragmatic foundations. 31 Indeed, one of his majo r innovations lay in an insistence on the importance of evaluating tr aditional doctrines not in a vacuum, but in light of the concrete effects of regulation on the real world. 32 Hence Breyer argued for a close connection between administ rative law and regulatory policy.33 While some of his work touched on the separation of powers, 34 constitutional law was not his field. But as a member of the Supreme Court, Breyer has sl owly been developing a distinctive approach of his own, one that also has a pragmatic di mension, and that can be seen as directly responsive to his colleague Scalia and to originalism. This book announces and develops that theor y. Its most distinctive feature is its effort to connect three seemingly disparate clai ms. The first is an insistence that judicial review can and should be undertaken with close reference to active liberty and to democratic goals, a point with clear links to Ely™s work. The second is an emphasis on the centrality of fipurposesfl to legal interpretation, a point rooted in the great legal process materials of Henry Hart and Albert Sacks and in part icular their brilliant note on statutory interpretation.35 The third is a claim about the need to evaluate theories of legal interpretation with close reference to thei r consequences, a point whose foundations can be found in American pragmatism. 36 As we shall see, much of the interest of Breyer™s book lies in its effort to integrate these three claims. I shall be raising questions about that effort, a bove all on two grounds. federal judge–even among the many who consider themselves originalists– would sustain them against an eighth amendment challenge.fl 30 Note here that Justice Scalia confesses, fiI hast en to confess that in a crunch I may prove a faint- hearted originalist. I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging.fl See id. 31 See, e.g., Stephen Breyer, Regulation and its Reform (1985). 32 See, e.g., id; Stephen Breyer, Breaking the Vicious Circle (1993). 33 See Stephen Breyer et al., Admini strative Law and Regulatory Policy (6 th ed. 2006). Full disclosure: I am among the fial.fl now working on the book, and hence Breyer and I are, in a formal sense, coauthors. But Breyer, otherwise occupied , has not worked on the book since I have joined it. 34 See Stephen Breyer, The Legislative Veto After Chadha, 72 Geo LJ 785 (1984). 35 See Henry Hart and Albert Sacks, The Legal Pr ocess 1340-48 (William Eskridge and Philip Frickey eds. 1994) 36 See William James, Pragmatism (1907).

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7 First, those who emphasize active liberty a nd democratic self-government might well reject a purposive approach to interpretation, including pur posive interpretation of the Constitution. Second, those who believe in the importance of consequences might well be drawn to an approach very different from Br eyer™s, including textualism, Thayerism, and perhaps even originalism. Breyer™s arguments are unfailingly reasonable; the question is whether his general commitments are enough to justify his particular conclusions. Let us now turn to some details. A. Theory Breyer™s organizing theme is fiactive libert y,fl which he associates with the right of self-governance. It is noteworthy that in his own judi cial work, Breyer is plausibly seen as the most consistently democratic member of the Rehnquist Court: Among its nine members, he has shown the highest percenta ge of votes to uphol d acts of Congress 37 and also to defer to the decisions of the executive branch. 38 And indeed, a great deal of his book is a plea for judicial caution and deference. 39 But Breyer does not mean to follow Thayer; he does not say that the Cour t should uphold legislation whenever the Constitution is unclear. Like Ely, Breyer does not rule out the view that courts should take an aggressive role in some areas, above all in order to protect democr atic governance (p. 11). His short book comes in three parts. Th e first builds on Benjamin Constant™s famous distinction between the liberty of the ancients and the liberty of the moderns (pp. 3-7).40 The liberty of the ancients involves fia ctive libertyflŠthe right to share in the exercise of sovereign power. Quoting Constant, Breyer refers to the hope that the sharing of that power would fiennoblefl the people™s fithoughts and establish among them a kind of intellectual equality which forms the gl ory and power of a fr ee peoplefl (p. 4). But Constant also prized nega tive liberty, meaning fiindi vidual independencefl from government authority. As Breyer describes Cons tant™s view, which he firmly endorses, it 37 Lori Ringhand, Judicial Activism and the Rehnquist Court, available on 38 See Cass R. Sunstein and Thomas Miles, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, U Chi L Rev (forthcoming 2006). 39 Thus, for example, Breyer favors a deferential approach to campaign finance restrictions and affirmative action programs; he also makes a plea for judicial caution in the domain of privacy. 40 The best discussion remains Stephen Holmes, Benjamin Constant and the Making of Modern Liberalism (1984).

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8 is necessary to have both forms of freedom, and thus fito combine the two togetherfl (p. 5).41 Breyer believes that the founders of the Constitution di d exactly that. His special emphasis is on what Constant called fian act ive and constant participation in public power.fl42 That form of participation includes vo ting, town meetings, and the like; but it also requires that citizens receive informa tion and education, in or der to promote their capacity to ensure effectiv e governance. In Breyer™s vi ew, the citizens of post- revolutionary America insisted on highly democratic forms of state government, promoting popular control. Breyer is aware of the highly ambivalent experiences of post- revolutionary governments; he know that some commentators have rejected the view that the Constitution is a democratic document. 43 Nonetheless, he believes that the founders of the Constitution accepted the deepest aspirations of the American Revolution, creating a framework with a fibasically democratic outlookfl (p. 25). After all, the document begins with the words, fiWe the People,fl and in Breyer™s view, its very structure is a testimonial to active liberty. Both the House and the Senate are subject to electoral control. Even with the electoral college , the choice of the President is ultimately traceable to voters, not to an unaccountable elite. Breyer thinks that the whole system is fidiffi cult to reconcile with a retrea t from democratic principle.fl On the contrary, he claims that the Constitu tion can be viewed fias focusing first and foremost upon ‚active liberty.™fl He thinks th at constitutional in terpretation should be undertaken with close reference to that overriding constitutional purpose.44 In Breyer™s account, the Warren Court appr eciated active liberty, and it attempted to make that form of liberty more real for all Americans (p. 11). By contrast, the Rehnquist Court may have pushed the pendulum t oo far back in the other direction (id.). In short, Breyer believes that an appreciation of active liberty has concrete implications for a wide range of modern disputes. 41 It is not clear that this is, in fact, an adequa te account of Constant™s vi ew. See Holmes, supra note. 42 See also Frank Michelman, Politics and Values or What™s Really Wrong with Rational Basis Review, 13 Creighton L Rev 487 (1979). 43 See, e.g., Charles Beard, An Economic Interpreta tion of the Constitution of the United States (1913). 44 As we shall see this claim is best taken, not as pu rely historical, but as an interpretive claim, one that attempts both to fit the document a nd to place it in the best constructiv e light. See Ronald Dworkin, Law™s Empire (1985).

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