Is Justice Breyer channeling John Hart Ely?--

The Wall Street Journal has a teaser story on Justice Stephen Breyer's new 161-page book to be released in a few weeks: "Active Liberty: Interpreting Our Democratic Constitution." I didn't know that Breyer was a disciple of John Hart Ely (and he may not be), but the interpretive theory described in the WSJ's account of Breyer's book sounds a lot like the main argument in Ely's Democracy & Distrust (1980).

Here is the WSJ on Breyer's book:

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.

So whereas Justice Scalia has voted to strike down campaign finance laws, arguing that they restrict free speech, Justice Breyer espouses a much different theory. He has voted to uphold such laws, arguing that they actually support constitutional values — such as the marketplace of free ideas — by limiting the ability of monied factions to overwhelm other points of view. . . .

The 161-page book, set for publication Sept. 13, aims to popularize ideas Justice Breyer has already advanced in academic lectures and articles. 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. . . .

In his book, Justice Breyer contends that originalists can be just as subjective as other judges, reaching the outcome they favor by emphasizing some historical elements and ignoring others. Such a literal reading, he writes, can be "inconsistent with the most fundamental original intention of the Framers themselves."

On, the book description (which is usually put out by the publisher) includes this: "Justice Breyer states that courts should take greater account of the Constitution's democratic nature when they interpret constitutional and statutory texts."

Here is a description of Ely's argument taken from an online review of Ely's 1980 Democracy & Distrust:

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 have ordered my copy of Breyer's new book. I can't wait to see how Breyer's democracy-enhancing interpretative strategy differs from Ely's democracy-enhancing interpretative strategy. I hope that in his book Breyer details how his theory follows or differs from Ely's, and that he deals with the criticisms that have been made of Ely's thesis.

Also, to the extent that Ely actually applies his democracy-enhancing approach in a very different way from Breyer's, I wonder about the amount of judicial discretion that might be inherent in democracy-enhancing approaches (would this be more or less than other interpretive approaches?). For example, Ely was hostile to extensive administrative rulemaking because bureaucrats were not elected, and Ely (though favoring abortion) was highly critical of the original decision in Roe v. Wade, but not of its progeny because of stare decisis (from Wikipedia), :

Ely wrote several influential law review articles, including a devastating critique of the Supreme Court's decision in Roe v. Wade in an article entitled "The Wages of Crying Wolf," published in the Yale Law Review, wherein he argued that the Court's decision protecting abortion rights was wrong "because it is not constitutional law and gives almost no sense of an obligation to try to be."

Ely's most notable work, however, was his 1980 book Democracy and Distrust, which ranks as one of the most influential works about Constitutional law ever written. In it, he argues against "interpretivism," of which Hugo Black was an exponent, and "originalism," advanced by Justices such as Antonin Scalia, by contending that "strict construction" fails to do justice to the open texture of many of the Constitution's provisions; at the same time, though, he maintains that the notion that judges may infer broad moral rights and values from the Constitution is radically undemocratic. Instead, Ely argued that the Supreme Court should interpret the Constitution so as to reinforce democratic processes and popular self-government, by ensuring equal representation in the political process on procedural grounds . . . .

Interestingly, Ely was born the same year as Breyer and they were in the same cohort as Harvard professors from 1973 to 1980. Ely's book came out 10 months before Breyer left Harvard to join the First Circuit in December 1980, so it would have been by far the leading book on judicial interpretation when Breyer first became a judge. Ely died of cancer in 2003.

T. More (www):
I cannot imagine myself what the interesting differences will be between the theories. But two questions strike me as more important, though the answers seem readily predictable: first, will Breyer deal with the strangeness that afflicts Ely's brilliant but flawed project: to wit, building a theory of constitutional interpretation as an apologetic for an inarguably "outlying" period of SC jurisprudence (the Warren Court); second, will Breyer really at the end of the day attempt to offer a defense of a document containing a series of numbered clauses and amendments and a self-amendment provision as REALLY amounting to (i.e., identifiable to the elect, as a Straussian readership, as) just a general provision that democracy is a good thing, thereby granting to judges a "roving commission" to do good, i.e., do "democratic" things, as they see fit?

Neither project seems particularly defensible to me, but I'd love to see the attempt, just as we watch Nascar in the secret hopes of a big crash in which nobody is ultimately hurt.
8.24.2005 5:57am
Simon (391563) (mail) (www):
I wonder how it is that one might conclude that the Warren Court is "inarguably" an "outlying" period of Supreme Court jurisprudence. What, exactly, makes it an outlier? Is it a willingness to invalidate laws? No. A willingness to ignore "original meaning"? No. A willigness to read into the constitution dictates (rights or powers) beyond its text? No.

The Warren Court was not the first Supreme Court, nor the last, to invalidate hosts of laws it found to be unconstitutional, ignore "original meaning," or to read the Constitution's text, shall we say, actively.

So what, exactly, makes it an outlier, and how is Ely's project any more strange that the apologetic Scalia wrote for his own peculiar brand of textualist originalism?
8.24.2005 7:35am
Phil (mail):
I found the WSJ characterization of Breyer as "among the more liberal members of the court" at least questionable. As far as I can tell, Justice Breyer is definitely to the right of Stevens, Ginsburg, and Souter and defintely to the left of Rehnquist, Thomas, and Souter (assuming left and right mean anything on the court). If he is among the more liberal, he is barely so. What I think marks him out is his immense comfort level with the large admin state, whether it is controlling marijuana, searching bags, or producing sentencing guidelines. If he is among the more liberal justices, liberalism's meaning has changed more than I thought.
That said, I will read the book first chance
8.24.2005 8:25am
Eh Nonymous (mail) (www):
i can't imagine that Breyer's first task in the book is to wrestle with Ely; in a sense, his _career_ as a Justice (that is, since 1994) has been wrestling with Scalia (metaphorically) and with other opposed or slightly inconsistent jurisprudences; as noted, he's found one that makes him very comfortable with certain government regulation.

Ely's statement about Roe gets a lot of play from social conservatives and supporters of Scalia's interpretive modes; I've seen many fewer conservatives wrestling with the _criticisms of Ely's characterization_.

Of course, part of that is ends-driven. A social conservative who strongly believes abortion is immoral and unjustified under any circumstances (hard for me to imagine myself in that person's shoes, but here I go) will prefer modes of interpretation which led to a comforting result:

that Roe was wrongly decided because it is "not Constitutional law."

Of course, anyone with a bit of history or a slightly different set of social preferences or even just a more honest approach to the structure and purpose of the Bill of Rights might well come to a different conclusion.

The First Amendment guarantees private rights of conscience, including the right to one's own faith and the right to speak; the Second protects gun ownership, in a way that does not to me speak of individual rights to gun ownership, but that's really beyond my competence; the Third is about the sanctity of the home; the Fourth, the sanctity of the person and property; the Fifth, Sixth, Seventh and Eighth deal with process interests, which protect the Legal Person from being chewed up by the machinery of the State.

If you can't find an implied _strong protection for all forms of privacy_ in there, then I don't know what I can say to you. Have you not read the rest of the Bill of Rights following the Eighth? How about the rest of the Constitution?

Scalia's demand to his critics that they locate the "consensual sodomy" clause are as misguided as a demand that he point out for us where in the Constitution (which does not mention the word God, or marriage) it states that this Republic was founded on a Judeo-Christian heritage, and that if marriage is altered to include gay and lesbian "spouses" (or for that matter, group marriages of consenting adults) then its social fabric will crumble. I mean, the family life will change; it's been changing for thousands of years.

In sum, Scalia's not a nut, just wrong, as I will detail in my upcoming Scalia Mega-Post on my blawg.
8.24.2005 10:12am
NaG (mail):
Seems to me that Justice Breyer's approach merely imposes his arbitrary view of "democracy" onto the actual democratic mechanics embodied in the Constitution.

I think that it would be more useful for Justice Breyer to try and make the case that judges, at some point, are forced to such arbitrary positions when construing a sufficiently complex document -- ie. that textualism can't answer every question that arises under the Constitution.
8.24.2005 10:42am
I think that the problem with Eh Nonymous's "iceberg" approach to constitutional interpretation (that is, there is a right to privacy underlying the Constitution, and we can see bits and pieces of it sticking up above the surface in various provisions) is that it proves too much- Lochner type economic rights can be supported thusly:

The second and third amendment are clearly protecting property rights in guns and homes, respectively. The fourth amendment again provides that people should be secure in their houses and effects, another property right provision. Fifth amendment is a home run, not only prohibiting the taking of property without due process of law, but requiring compensation when property is taken for private use. Amendments 6 through 8 provide procedural protection, clearly an important part of protecting people's property. And don't even get me started on the Reconstruction Amendments... So clearly, taking from A to give to B is blatantly unconstitutional according to the right of freedom of contract/property that underlies so many constitutional provisions...

Assuming you don't want to revive Lochner, you're going to have to do some more work to distinguish the current privacy right from the old freedom of contract right. Also, I would quibble with the characterization of one's own view of the Bill of Rights as being "more honest" than one's opponents' views.
8.24.2005 10:55am
BruceB (mail):
What is glaringly absent from both Breyer's and Ely's interpretive theories is the notion of paying even the slightest bit of attention to what the Constitution actually SAYS. Rather, both theories (if there are any differences) essentially boil down to the Supreme Court acting as a societal referee according to its own amorphous notions of what is "democracy-enhancing" and what would be a "practical solution to important social problems." Someone please show me where in Article III the courts are charged with the duty to "enhance democracy" or to find "practical solutions to important social problems." I can't seem to find them in my copy. This is nothing more than raw judicial activism with fancy window dressing.
8.24.2005 10:57am
SimonD (mail):
or to read the Constitution's text, shall we say, actively.
Let's say "creatively" instead. "Actively" seems to imply merely the active searching out of what is already present, rather than finding that which is not.

Breyer is a smart fellow, a good writer, and I look forward to reading his book. With that having been said, I will read it as an opponent of his view of the role of courts, and I suspect he will not make a convert of me. With that in mind, I join BruceB's previous comment.
8.24.2005 11:07am
SimonD (mail):
A social conservative who strongly believes abortion is immoral and unjustified under any circumstances (hard for me to imagine myself in that person's shoes, but here I go) will prefer modes of interpretation which led to a comforting result: that Roe was wrongly decided because it is "not Constitutional law."
However, note that Scalia has indicated that just as the Constitution grants no right to privacy, nor does it grant the Federal government an authority to criminalize abortion. While I don't think many people would question that Scalia is a social conservative of one stripe or another, he has indicated that he would vote to strike down a federal law criminalizing abortion as readily as he would vote against striking down a state law doing the same thing. That seems the appropriate position to my mind (even as someone who is pro life): that it is a matter to be resolved by the state legislatures in accordance with their societal values and state constitutions. There is no federal question here. Which isn't to say that there shouldn't be - merely that there isn't.
8.24.2005 11:12am
Nick (www):
I'm not familiar with what is considered proper here for a judge... but I find it a little strange I guess that a current Supreme Court justice would write a book at all. After all, people have been talking about the nomination process for Judge Roberts, and how realistically there are very few questions he could answer since he needs to be impartial about any potential future cases.

With that in mind, how proper is it for a sitting judge to essentially do the same thing in book form? With that said, I'm sure he's not the first SCOTUS judge to write a book while on the bench, and he won't be the last... I just wonder whether it's viewed as proper by everyone. Not being a lawyer, I really don't know.
8.24.2005 11:15am
SimonD (mail):
Other Justices have written books, but they have tended to be histories (Rehnquist) or personal accounts (O'Connor). Scalia has written A Matter of Interpretation, which stops somewhere short of being an apologetic for originalism, but certainly explains his views.

I tend to think the issue with Roberts is simply this. He is urged not to answer questions which might lead to Senators voting against him on political grounds, just as Ginsburg and Breyer declined to answer questions which might lead to Senators voting against them on political grounds. I think that discussing one's legal philosophy is fair game, in book format or in nomination hearings. Speaking specifically about past cases or areas of controversy is a prerogative only of the confirmed.
8.24.2005 11:30am
Nathan Bauer (www):
SimonD writes:

Scalia has written A Matter of Interpretation, which stops somewhere short of being an apologetic for originalism, but certainly explains his views.

No offence, but that's hilarious. How exactly does it stop short of being an apologetic for originalism? I mean, he does spend much of the book defending the position.

On the Roberts point, I think SimonD is correct that candidates for the supreme court tend to avoid answering difficult questions for largely political reasons. But of course, this is a terrible reason for not answering questions, so, instead, they inevitably say that they cannot answer for fear of prejudging potential cases. But since supreme court justices routinely write and talk about their views on quite specific issues, it's not clear why Roberts and others should have to stay silent. (As an aside, I suspect this is why SimonD downplays the apologetic role of Scalia's book, but perhaps I am mistaken.)
8.24.2005 12:20pm
Robert Schwartz (mail):
I would be interested in citations to articles explaining Ely's views and criticizing them -- preferably ones freely available on the internet.
8.24.2005 12:33pm
RegCheck (mail):
It will be interesting to compare Justice Breyer's thoughts in this book with his pre-SCOTUS published views on health and environmental risk management in "Breaking the Vicious Circle." In that book, he argued rather strenuously for the establishment of an elite and highly non-democratic institution that would be authorized to supplant the judgment of democratically elected republican institutions (e.g., Congress) to ensure that health and environmental risks are managed rationally (i.e., in accordance with normative benefit-cost principles).

At the time he proposed that this institution be placed in the Executive branch. Assuming he still agrees with himself, he no doubt feels even more strongly that the Executive branch is where this non-democratic institution belongs. That way, he would get to exercise "active liberty" over its decisions.
8.24.2005 12:50pm
T. More (www):
Simon (391563), I guess one can never call a legal issue discussed by lawyers "inarguable." Let me say that, prior to your post, I had never encountered controversy among either liberal or conservative commentators (by which, let's mean here, fans of the Warren Court and foes of the Warren Court) with the claim that the Warren Court behaved notably differently from prior courts and later courts. That makes it, in my view, an outlier. It is, for ACS-types, an outlier as a hero is an outlier, and for Federalists something more like the reductio ad absurdum of anti-textualist, a-historical arguments. It led us down a road toward "Eh Nonymous's" view that the 1st Amendment (and the others) were meant to give judges helpful hints about the sorts of rights the Bill of Rights expects them to enforce. So the first amendment sets them on a course of "conscience" protection, and so forth. That's an interesting theory about the role of judges and the reasons for writing down laws. I think it's also quite wrong, but that is for another day.

One cannot find grounding for such an approach in most of the Supreme Court's behavior prior to the Warren Court (though many decisions subsequent, like Lawrence, have kept the tradition alive), which is why Prof. Eskridge, in his paper for this Yale Symposium (, described the need for a defense of the Warren Courts "activism" as "urgent." You will find, I think, that Eskridge and the other panelists at that Yale Symposium are not benighted conservatives like me, but they nevertheless generally treat the Warren Court as something, well, special.

So what makes Ely's project stranger than Scalia's (though of course they might both be strange--it's not clear why I'm supposed to defend Scalia or abandon my critique of Ely), to my mind, is that Justice Scalia is trying to come to grips with the very notion of a written Constitution (something all jurisprudence in our system must do) and with the role that the text and structure of that Constitution seem to envision for judges at all times in interpreting the very document. It is a stranger thing to take a court that needs an "urgent" rationale or defense for its jurisprudence and at the same time imagine that that Court's jurisprudence would provide a theory extending backward and forward in time as general theory of jurisprudence. Now, it might be that the Warren Court was the best court we ever had, and the one that best understood the role of Article III judges in our system--that would be an interesting fact, and one that would justify Ely's project. But it would be a strange thing to discover that a Court whose work urgently called for a defense (because it was novel), and whose style has largely been abandoned, was in fact the court that best fulfilled the Constitutional role of judges.
8.24.2005 12:59pm
Jim Lindgren (mail):
For more on Ely (especially his later book), see these nine papers at a symposium, available online:


Most of the reviews of his 1980 book are not online, but here are some other reviews and comments:





8.24.2005 2:15pm
Tom Caso (mail) (www):
If Justice Breyer's approach to Constitutional interpretation is really to protect "the democratic system the Constitution's Framers sought to build", how does that square with his reference to foreign legal sources in his decisions? The philosophical basis for the interpretative method would have to be much broader than anything the Framers intended in order to find foreign legal authority at all relevant to the interpretation of the US Constitution. It will be interesting to see if he addresses this issue in the book.
8.24.2005 2:27pm
SimonD (mail):
How exactly does it stop short of being an apologetic for originalism? I mean, he does spend much of the book defending the position.
I may be wrong in saying that it doesn't qualify as an apologetic; I suppose my statement is more based on an idea that, were Scalia to write a full-blown apologetic explaining his interpretative method, its underlying premises and practical application, I would expect to be considerably more heavyweight. AMoI is very good as far as it goes (I would argue it more seeks to explain and pursuade rather than defend), but I do not think that it stands alone (i.e. aside from Scalia's other writings and speeches) as a defense of originalism, textualism or his own methods. For that reason, if it is an apologetic, it isn't a very satisfying one.

Tom Caso:
If Justice Breyer's approach to Constitutional interpretation is really to protect "the democratic system the Constitution's Framers sought to build", how does that square with his reference to foreign legal sources in his decisions?
Incidentally, wouldn't an approach that "protect[ed] 'the democratic system the Constitution's Framers sought to build'" constitute an original intent argument? And hasn't original intent been long-abandoned even by originalists? While I would be delighted to see Justice Breyer become a convert, I fear he is barking up the wrong tree. In any instance, I think it unlikely that it is the "democratic system the Constitution's Framers sought to build" that Justice Breyer wishes to protect, but rather, his own view of what might be best for society; what might be squeezed from the framework we have, within the constitution if possible, and without if neccesary. With those caveats, I join Tom's comments.
8.24.2005 3:48pm
Eh Nonymous, what about "Congress shall make no law" do you not understand? The problem for your conclusion that broad right to privacy is implicitly enshrined within the Constitution isn't that it's not there, rather that if it's there, it doesn't restrict State action, only action by the national government. There are specific restrictions on State action, and perhaps parts of Amendments 1 - 8 are among them, but only to the extent that those amendments guarantee procedural protections included within the idea of "due process" as it was understood when the 14th amendment was ratified. The idea that due process embodies a right to privacy that prevents a State from regulating abortion is sophistry.

For what it's worth, my policy preference regarding abortion isn't the source for my views on constitutional interpretation, even though I do think that returning the question to the state legislatures is the best way to imnplement my preferred policy. I would generally characterize my views as moderately pro-choice (probably pretty close to the mainstream), strongly supporting abortion rights early in pregnancy, strongly opposing unregulated abortion later in pregnancy, and considering very late-term abortion pretty much the same as infantcide except when the pregnancy clearly threatens the life of the mother (no "health of the mother" exception wide enough to drive a truck through).

We're now at the point the framers envisioned -- where the state governments are the most reliable protectors of individual liberty and the national government the most likely source of infringement on that liberty. We need a healthy federalism, not a national government that is ever-expanding at the expense of the states, and that requires a judiciary that interprets the constitution giving primacy to the words that are actually contained in that document, not to words that one particular judge or another would prefer to be written in it.
8.24.2005 5:56pm
SimonD, sorry, I missed your previous post regarding constitutional limitations on national gov't action as distinguished from limitations on State action. Interesting that you, self-described as pro-life, and I, self-described as moderately pro-choice, would agree on the appropriate forum for resolution of the abortion rights question, eh? The issue of the appropriate method of constitutional interpretation really isn't a proxy for the issue of abortion rights.
8.24.2005 6:04pm
Cheburashka (mail):
The First Amendment guarantees private rights of conscience, including the right to one's own faith and the right to speak; the Second protects gun ownership, in a way that does not to me speak of individual rights to gun ownership, but that's really beyond my competence; the Third is about the sanctity of the home; the Fourth, the sanctity of the person and property; the Fifth, Sixth, Seventh and Eighth deal with process interests, which protect the Legal Person from being chewed up by the machinery of the State.

If you can't find an implied _strong protection for all forms of privacy_ in there, then I don't know what I can say to you. Have you not read the rest of the Bill of Rights following the Eighth? How about the rest of the Constitution?

I don't know how anyone could look at those provisions and their role in our legal system and rationally find a right to "privacy." What about the obligation to testify before a grand jury? To respond to a subpoena? To serve as a juror and answer jury questionaires truthfully? To fill out tax forms?

If there was a right to privacy, we would need only one amendment. If the founders intended to summarize different aspects to a right to privacy, they would not have left the right of parents in the care and upbringing of their children out. (And we can all agree that that right really does exist, and that it is fundamental.)

I view the bill of rights as a set of particular enactments meant, for the most part, to resolve what had been particular troubling issues of the day - the role of state churches, invasive behavior by law enforcement, the housing of soldiers on private land, and so forth.

The other function of the bill of rights is to flesh out the (then) peculiar democratic system envisioned by the founders; I put the 2d Amendment and 5th Amendment in that category, as rights related to 18th Century concerns for minority rights.

But I just don't see "privacy" anywhere there.
8.24.2005 6:28pm
Eh Nonymous (mail) (www):
Anon: there's lots of stuff about "no law respecting" that I don't understand. Why a law allowing a church to be tax-free is okay, for example. It's an establishment, isn't it? Oh, it's a different meaning of the word? Oops.


Privacy is not an amendment. Privacy is a concept, like sovereignty, liberty, or equality. Privacy is _powerfully present_ in the Amendments I listed. Privacy, like the other abstract values, is not infinite. Where other duties (to serve on a jury, to comply with the legitimate requirements of law) conflict, privacy is not extended.

But just because I see Privacy as _manifestly though implicitly_ present in those Amendments, doesn't mean that's how I would do Roe. If I had Roe to do over again, I'd strike abortion laws down Lawrence-style, for the reasons that liberal constitutional thinkers believe that if I walked up to you.... personally, even if you're a male...

...stuck some tubes in you, and _hooked you up to_ a nobel prize-winning concert pianist who is about to discover the cure for cancer, so that you provided his nutrients and other essential items, and if you removed the tubes, she or he would die...

... that there would be no Constitutional right - none - held by the concert pianist or anyone else, no matter what - to _force you to continue giving up your body's nutrients_ to save this person's life.

The theory is, a single second's imposition of this intubation (is that the word?) would be a violation of personhood. I can't go up to you and, without your permission, force you to bear a person's life. There's nothing similar to that in any area of law or life that I'm aware of... except pregnancy by rape.

Even for pregnancy not by rape, the analogy holds. If you agreed at second 1 that you would let them hook you up to the pianist, what kind of contractual theory would prevent you from later retracting that agreement? A fairness argument? In the face of the massive and unsupportable violation of personhood, no contract could stand. When you decide that you _won't have that concert pianist attached to you anymore_, that should be that.

So, let's go back to privacy. Privacy as in private, as in the individual. If you think that the Amendments are Negative in Nature, as in they imply no private rights of action or protections for the citizen, fine. You're nuts, but fine. But if you think those limitations on Government action imply a private right, and maybe a private right of action, then we're back to privacy again.

Privacy means the individual has rights. Privacy means the Government can't always do what it wants.

And whoever up there wrote that it's a limitation on the Federal Government, not the States? Does that mean the States can prohibit gun ownership? What about deny rights to a jury or deny the right to counsel in a death penalty case? Or deny the right to confrontation, or put people to death for stealing bread? Can they eliminate the First Amendment? Or does the Bill of Rights also apply to the States?

I have no further questions.
8.24.2005 9:42pm
arbitraryaardvark (mail) (www):
Jim: The publishers will probably be happy to send you a review copy by tomorrow's mail.
Eh, et alia: This thread, which may be drifting off topic slightly, has inspired me to consider a 13th Amendment incorporation doctrine. The constitution prohibits involuntary servitude, and by implication, badges of slavery. Certain rights are implicit in the concept of ordered liberty, which, if denied, could be construed as badges of slavery. The right to write and read, the right to bear arms, the right to not have troops quartered in one's home, property taken without compensation, and so forth. I do not here address the abortion issue. A right of privacy is an aspect of liberty. The denial of liberty implicates badges of slavery.
OK, back to Breyer. With the exception of Eldrige, Breyer has yet to impress me much, and I'm not sure where he's going with the book. But I think he certainly has a point that one of the constitution's themes is concern with democratic process. Not only the first, 14th, 15th, 19th, poll taxes, term limits, voting age, succession, and so on show a deep concern with democratic process, which leaves some room to speculate about the intent of the ratifiers and what general principles might be indicated by these more specific changes. I don't like the view in Austin or McConnell that the rich have less of a right to speak than others, because often it is only the rich who can manage to litigate these issues against the deep pockets of the goverment; I do not object when rich parties establish democratic freedoms my poor clients can then rely on.
8.24.2005 11:53pm
Simon (391563) (mail) (www):
T. More-

My apologies for the delayed response. And I will begin with an admission: I, too, rarely encounter any fans or foes of the Warren Court who believe it was not in some notable way different from the courts that proceeded and followed it.

But that hasn't stopped me from asking: why? If for a moment we set aside reasoning and focus solely on results, I can see four major areas where the Warren Court made substantial departures from prior doctrine: race, sexual privacy, political access, and the rights of criminal defendants. Important areas, to be sure, but are they more important than changes made by other courts in other times? If anti-textualism and ahistoricism help define "outliers," then I can go through my handy pocket constitution and see, for instance, that the most significant developments in many constitutional provisions occurred before the Warren Court was formed. Think Commerce Clause, the First Amendment, and the Second Amendment. Is this to say that the Warren Court did not help shape the development of law in those areas? Of course not. But in each case I would argue that they were largely building on the spadework done by previous courts. Much like, for instance, the Rehnquist Court has done. Think Dickerson (Rehnquist, C.J.) and R.A.V. (Scalia, J.) as examples. (The Rehnquist era of course has its own set of groundbreaking cases -- Justice Kennedy's decisions in Boerne, Alden, Romer, and Lawrence, and the Chief Justice's decision in Seminole Tribe, for instance.) To some extent, then, even some of the Warren Court's most famous decisions were relatively ordinary.

There were some, of course, that were quite extraordinary. These include Brown v. Board of Education, Griswold v. Connecticut, South Carolina v. Katzenbach, Baker v. Carr, Miranda v. Arizona, and Gideon v. Wainwright. These cases are indeed outliers, at least when measured against the prior constitutional history, but I confess I remain puzzled why someone would consider any of these results a bad thing.

Of course, perhaps what makes a case (or a Court) an "outlier" is not the results, which I have focused on above, but the reasoning employed. A reasonable argument to be sure, but if it is one you intend on making then I must insist that you provide both a test by which we can measure what counts as"normal" (as compared with "outlying") judicial reasoning, and examples of such reasoning employed. I would guess that providing a defensible account of "normal" judicial reasoning is harder than you suspect, and that once you establish such a test, I will be able to find at least as many decisions from other eras of the Court employing the same type of reasoning, if not achieving the same results.

That is my too long-for-a-blog-comment but otherwise too short answer as to why I am skeptical that the Warren Court lies as outside the mainstream of constitutional law as its reputation suggests.

As for why the Warren Court would need defending: regardless of evidence of its actual status, the Warren Court has been the primary target of a concerted political and legal movement from the early 1970s. Its decisions have held up remarkably well, all things considered, but it unquestionably remains a target, which is naturally of concern for those of us who are uninterested, legally or politically, in returning to the days of segregated schools, illegal contraception, bigoted political processes, or mistreatment of suspects and criminal defendants.

As for the remainder: I'm not sure which version of Democracy and Distrust you read, but I find the notion that Ely is not terribly sensitive to the text and structure of the written Constitution to be quite puzzling. He writes in his introduction, "[a]n untrammeled majority is indeed a dangerous thing, but it will require a heroic inference to get from that realization to the conclusion that the enforcement by unelected officials of an 'unwritten constitution' is an appropriate response in a democratic republic." (Lest you think I am cherry picking, I suggest you read, or re-read, all of Chapter 3.)

I also fail to see the disconnect between the need to defend the Warren Court's jurisprudence and the idea that it has not provided "a theory extending backward and forward in time as a general theory of jurisprudence." Surely you are not suggesting than any court could meet such a test? I would think that no court nor any justice, save perhaps John Marshall himself, is immune from the slings and arrows of commentators.

Neither the Warren Court nor John Hart Ely are without their faults. But those faults, in the case of the Warren Court, are terribly exaggerated, and Ely's theory of judicial review remains, for my money, the most defensible in play today. (With a nod toward David Strauss, and a fervent wish he would publish his book, and with all due respect to our co-host.)
8.26.2005 5:56pm
T. More (www):
Simon, I'm sorry, I was not clear in drawing my distinction between Ely's project and Scalia's--to the extent (and it is not negligible) that Ely is concerned with the text and history of the Constitution his book is similar--the distinction lies in the fact of his project's being a necessary defense of the Warren Court rather than a general theory of interpretation, the latter being what Scalia attempts to provide. It's another way of stating that drawing a theory from what is anomalous makes for odd soup. Ely was no radical, as his strong revulsion for Roe made clear; but his project is distinguishable from Scalia's.

I'll just make two other brief replies: I shall be rereading Ely, to whom I do not think I have been uncharitable--I did call the project brilliant but I think it ultimately wrongheaded. You might similarly try to imagine that I, who am no fan of the Warren Court, am also not looking to abuse criminal defendants, outlaw contraception, segregate schools, or anything of the sort. Frankly, and I want to be both kind and clear here, that sort of argument is beneath you, insulting to those who disagree with you, and wrong on the merits. It is wrong on the merits because the fact that a person does not wish to outlaw contraception does not lead to the inference that Griswold was correctly decided, except to those who conflate "jurisprudence" with "making the world come out my way, whatever the legal materials may be."

Finally, I would agree with you that our system makes it hard to define courts as outliers. I think the fact that both right and left (sloppy as those labels are) find the Warren Court to be so suggests they might just be on to something, but I suspect even that Court, like today's, was 80% of the time just doing the "easy" stuff--most of this "contentious" Rehnquist court's decisions are 7-2, 8-1, or 9-0. I recall the figure being something like upwards of 75% last time I bothered to check. That may well have been true of the Warren Court. But the signal cases of that era tend to stand out, as Brown itself does, as novel in their jurisprudence. Someday we might attain a level of civil and intelligent discourse in this country where the novelty of Brown's reasoning can be raised as an issue without implicating the person who raises the question as a racist, a segregationist, or worse. I think Brown was rightly decided, but I don't think Herb Wechsler was a bad man for questioning its reasoning, and to this day some academics hold him in contempt for that, with little on their side but the implicit charge of racism for those who would question the decision.

Thanks for your careful reply, and for alerting me on my own blog, no less!
8.26.2005 8:00pm
Simon (391563) (mail) (www):
T. More-

To be clear, I, too, do not think Wechsler was a bad man, and indeed, his argument for neutral principles has much to recommend it. (As does friend Ely's stinging criticism of Roe v. Wade.) But, as Dworkin observed, adherence to Brown's result has now become necessary for any theory of constitutional theory to be taken seriously. (Witness Judge McConnell's heroic, but ultimately flawed, attempt to defend Brown's result on originalist grounds, which Randy Barnett discusses here.) At some point, it's probably worth discussing at greater length exactly why that is.

If, however, you wish to start that conversation today, or to explain (rather than simply assert) that the "signal cases of [the Warren Court] tend to stand out . . . as novel in the jurisprudence," then I would invite you to pick Brown or one of the others I mentioned previously, or a signal case of your own choosing, and explain what is novel about the reasoning. Of course, I will continue to insist that at some point you put a little more meat on the bone of "novelty."

As for Ely's book, I confess that I have never read it as a "necessary defense" of the Warren Court; an explanation of why he thinks others have misinterpreted the Warren Court's decisions, perhaps, but not strictly speaking a defense. And the notion that he doesn't offer "a general theory of interpretation" is, I'm sorry to say, quite bizarre. To begin with, the subtitle of his book is "A Theory of Judicial Review." His preface frames his project in quite general terms: "In this book I shall a elaborate a third theory of judicial review, one that I shall argue is consistent with those underlying [democratic] assumptions, in fact constructed so as to enlist the courts in helping to make them a reality." And he concludes that his "general theory is one that bounds judicial review under the Constitution's open-ended provisions by insisting that it can appropriately concern itself only with questions of participation, and not with the substantive merits of the political choice under attack." Agree with his conclusions or not, he spends the chapters of his book addressing the project as he introduces it. I confess I can't imagine what more you want from the guy. (You also, by the way, get no points for claiming that Democracy and Distrust is "odd soup" because it draws on "what is anomalous" until you start giving evidence of the existence of the anomaly.)

While it is kind of you to suggest that my argument regarding school segregation, criminal defendants, contraception, and the political process is beneath me, I must assure you that you are wrong. I cannot help but view criticisms of the Warren Court partly in the context from which they were originally offered -- by politicians and lawyers none-to-eager to recognize the rights of minorities to participate in the political process, of criminal defendants, of women. This sort of politics is an integral part of the heritage of the long-running campaign against Warren Court decisions; part of its "original meaning," if you will. (Does that grant it fair use in interpretation?)

Would I be right to attribute this ugliness to all critics of the Warren Court? Of course not. And, to be clear, I don't. But since we're on the subject, I have to wonder: how do such critics view Brown, Griswold, Katzenbach, Baker, Gideon and Miranda? Do the decisions reach the right result for the right reasons? For the wrong reasons? Or do they reach the wrong result, and address subjects best left to legislative discretion? And if it is the last, how many critics are prepared to vote for candidates at both the state and federal level who will establish through legislation the rights the Court recognized in those cases? (Perhaps I am unduly cynical, but my guess is that the answer to the last question is "not many.")

Make no mistake: I do not believe that jurisprudence means "making the world come out my way." (Anyone who has listened to me rant against Kennedy's opinion in Lawrence could tell you as much.) Query, though: how does your point play against what I mentioned earlier about the role of Brown in modern constitutional interpretation? What does it mean for statements about results-based reasoning when the test we use is itself a question of ends rther than means?

There are many decisions from both the Burger and Rehnquist courts whose results I prefer but whose reasoning I find to be, at best, weak. But the signal cases of the Warren Court are relatively free of such problems. (I'd love for you to point some out to me, so that maybe we can move from the abstract to the concrete.)

8.27.2005 7:04pm