February 7, 2006
Last week, Chuck Colson and I attended the swearing-in ceremony for Justice Samuel Alito. After two strenuous confirmation battles in less than six months, I was happy, as were many others, to celebrate and take it easy. Then I read an article by John DiIulio in the Weekly Standard.
DiIulio, a life-long Democrat, was reviewing the book Active Liberty: Interpreting Our Democratic Constitution by Supreme Court Justice Stephen Breyer. In setting forth his theory of constitutional interpretation, Breyer cites a number of sources—and occasionally the Constitution. This relative neglect makes sense when you consider that, according to Breyer, the job of a justice is "to realize the Constitution's 'democratic objective.'"
That "democratic objective" is the judicial protection of what Breyer, citing the French philosopher Benjamin Constant, calls "modern liberty": the freedom to "think, speak, and act 'free of improper government interference.'" Protecting "modern liberty," in Breyer's view, includes federal judges "yielding" law that helps a "community of individuals . . . find practical solutions to important contemporary social problems."
It's significant that Breyer wrote "community of individuals" instead of "community." That's because his constitutional project is a radically individualistic one that has little, if any, room for ideas about the common good. And it's precisely the common good, Romans 13 tells us, that governments should protect. On the other hand, the radical individualism espoused by Breyer is part of an Enlightenment worldview.
The other notable thing here is that finding "practical solutions" to "social problems" is supposed to be the job of the legislature. Breyer admits that judges may not be any better at this task than the people's elected representatives, but that shouldn't keep them from taking the lead in implementing the Constitution's "democratic objectives"—nor should "persistent popular majorities" that "beg to differ with the judge's own values and views."
It seems to me what Breyer is proposing is nothing less than a continuing and endless Constitutional Convention with the Supreme Court as both framer and ratifier. Thus, even if the American people are not prepared, as President Bush put it, to "redefine marriage," it doesn't matter: According to Breyer, judges are guided by the higher value of protecting "active liberty."
As DiIulio wrote, Breyer's intelligence and his erudition make "active liberty" the alternative to holding fast to the Framers' intentions. And it provides a rationale for using the courts as engines for social engineering.
This is exactly what Chuck and people like Russell Hittinger warned about ten years ago in the book The End of Democracy? They warned us about the kind of judicial usurpation that undermines our "traditions of democratic self-governance" that have safeguarded morals and values consistent with the biblical worldview.
At the time, their critics insisted that they were exaggerating the problem. But if anything, they underestimated the scope of the problem. Breyer's book is unapologetic in its defense of rule by judges.
The only sure defense against this kind of power grab is to keep those who espouse the notions found in Breyer's new book in the minority, which is why relaxing, when it comes to Supreme Court justices, will have to wait.
