Dionne on the Courts
Talking Sense On Court Choices
Breyer's master concept is "active liberty." He argues that the point of our Constitution is democracy -- to guarantee "the principle of participatory self-government" that gives the people "room to decide and leeway to make mistakes."He suggests that justices who focus primarily on the Constitution's text and "the Framers' original expectations narrowly conceived" miss the Founders' basic intention. Their purpose, Breyer says, was "to create a framework for democratic government -- a government that, while protecting basic individual liberties, permits citizens to govern themselves, and to govern themselves effectively."
Breyer's argument leads not to judicial activism but to judicial humility. He insists that courts take care to figure out what the people's representatives intended when they passed laws. You might say that justices should not behave like imperious English professors who insist they can interpret the true meaning of words better than those who actually wrote them.
The power of Breyer's idea of "active liberty" is that it links freedom to democracy. The point of our system of self-government is not simply to protect us from the wrongs government can commit but to give all of us the opportunity to shape what government does.
This looks like a great contribution to the debate over judicial activism by Breyer. The full lecture is here. (pdf)