Wednesday, February 08, 2006

Justice Breyer's Active Liberty

Kathleen Sullivan reviews Justice Breyer's Active Liberty. I have a couple of comments on things she has written. First:
". . . . In promising that the justices he appoints 'will not legislate from the bench and will strictly interpret the Constitution,' Bush has faithfully recited the mantra that conservatives regularly use to signal their belief that the Supreme Court should defer to democratic decision making.

But in fact, conservative justices have frequently invoked the Constitution in recent years to strike down laws passed by representatives of the people, especially statutes enacted by Congress. At last month's Senate Judiciary Committee hearings on the nomination of Samuel A. Alito Jr., Democrats and Republicans agreed on little except the view that the court presided over by Chief Justice William H. Rehnquist had struck down too many of their own statutes."
I respectfully dissent. It strikes me that our Constitution, when written and ratified, is the result of "democratic decision making." Furthermore, the Constitution is "the highest law of the land." Deciding cases before the Supreme Court on the words of the highest law of the land seems to me consistent with respect for democratic decision making.

Second, I don't understand the following:
"Breyer goes farther than Ely, however, by applying his theory to statutory as well as constitutional interpretation. He explains why it is best to interpret statutes in the light of testimony before Congress and legislative history rather than their literal texts: "the interpretative process" should make "an effort to locate, and remain faithful to, the human purposes embodied in a statute.'"
It seems to me that the "human purposes embodied" in the Constitution were the creation of a limited national government while at the same time protecting individual liberty against government. Justice Breyer's opinions, as well his "active liberty" approach, seem to me to be inconsistent with these "human purposes."

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