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Stephen Breyer's Perpetual Constitutional Convention By: Don Feder
FrontPageMagazine.com | Friday, October 21, 2005


Associate Supreme Court Justice Stephen Breyer thinks the Founding Fathers were a bunch of troglodytes.

Forget what Madison et al. meant; they lived in a benighted era before New York Times editorials, internet pornography or trans-gendered terrorists, Breyer informs us. Forget the clear meaning of words and phrases. Instead, focus on the Constitution’s supposed underlying principle and leave it to us judges to decide how that principle should be applied.

In his just-published book, Active Liberty: Interpreting Our Democratic Constitution, Breyer (a judicial Jacobin), argues against the doctrine of original intent – which holds that, in interpreting the Constitution, judges should consider what the Framers actually meant by phrases like "establishment of religion."

Instead, we should consult what Breyer posits as the Constitution’s Big Picture, which he identifies as "active liberty" or the desire of the Founders to promote not just liberty but "the freedom to participate in government itself."

Hawking his manifesto on ABC’s "This Week With George Stephanopoulos," Breyer explained: "The people who wrote the Constitution really didn’t think there would be an Internet. They thought the commerce clause would apply in the future but just to horses. They didn’t dream of automobiles; they didn’t dream of television; they didn’t dream of Internet, computers, all the things that affect our privacy, for example." Apparently, Adams and his associates didn’t dream much.

Breyer is recycling one of the moldiest myths deployed to justify judicial tyranny: The Constitution, as originally written, is hopelessly out-of-date (no more than a quaint anachronism today). It’s impossible to apply the perspective of 18th century minds to 21st century problems.

This ignores two things.

1) Technology changes; human nature does not. We are influenced by same passions that shaped human action two centuries or two millennia years ago. (Unable to comprehend this, since the French Revolution, the left has been trying to remake human nature – with disastrous results.)

The Founding Fathers understood the yearning for freedom and the need to balance this with the quest for order and community. Having just escaped the British monarchy, they knew of the dangers of government. (Washington wrote: "Government is like fire -- at best an uncertain servant; at worst a fearful master.") The reason for the separation of powers and checks and balances was to assure that no branch of the federal government ever dominates the other two. That system still works well -- even in the age of the Internet – or would if the courts let it.

2) Clearly, the Founding Fathers understood that from time to time their great work would require alteration. They provided for this in the amendment process, set forth in Article V.

At the same time, they didn’t want to see our national charter changed without serious deliberation and absent a national consensus. The mechanism they created requires both. Amendments are "proposed" by a two-thirds vote of each house of Congress. Then the amendment must be ratified by the legislatures of three-fourths of the states.

Because the process is deliberately cumbersome and requires super-majorities all around, despite hundreds of attempts, the Constitution has only been amended 27 times over two centuries – the last in 1992.

Breyer and his colleagues ignore Article V because they know they could never achieve their goals in this way. Imagine that, 20 years ago, someone in the Democratic Party had suggested: "In the name of fairness and inclusion, let’s amend the Constitution to provide for racial quotas!" Such a proposal would have gotten, two dozen votes in Congress, and been greeted in the hinterlands with the proverbial Bronx Cheer. It could only have been accomplished by judicial fiat.

Breyer, Souter, Kennedy and the rest of the Supreme Court’s wrecking crew amend the Constitution at least once in each session. Every time they distort it to advance part of the left’s agenda, they are in fact amending the Constitution from the bench. Instead of super-majorities in Congress and the states, all it takes is a five-person majority on the Supreme Court. It’s this that Breyer seeks to rationalize.

Back to Breyer’s bogus argument: We mustn’t get hung up on the literal words of the Constitution. We should instead seek guidance from the document’s underlying vision – "active liberty."

According to Breyer, the grand design of the Founding Fathers wasn’t just "freedom from government," but "freedom to participate in government."

Thus, something like campaign-finance fraud, which Beryer supported in voting with the majority to uphold McCain-Feingold, while restricting individual freedom (the right to contribute to the political candidates of one’s choice), really validates the Constitution’s essential premise, by limiting the power of money in elections.

"Active liberty" is truly a wondrous device. Who decides what policies advance it? Why leftist jurists like Breyer, of course. Coincidentally, furthering the sacred cause of "active liberty," just happens to coincide with promoting the left’s agenda.

In reality, the Founding Fathers had little desire to increase political participation. If they had, the Constitution would have provided for universal franchise. (When it was adopted, probably no more than 10 percent of the adult population was eligible to vote.) The word "democracy" appears nowhere in the Constitution – just like "separation of church and state" and "privacy."

What the distinguished gentlemen who invented our form of government sought was a republic -- a balance of rights and responsibilities, and limitations on state power, all of which Breyer and his buddies are doing their best to destroy.

In Grutter v. Bollinger, Breyer sided with the majority in sanctioning the use of racial quotas by the University of Michigan Law School, in order to achieve a "critical mass" of minority students. Forget the rights of more qualified applicants who are rejected in the name of diversity. Forget the 14th Amendment’s Equal Protection Clause, which prohibits such race-based policies. Instead, Breyer probably would say, think about the need to make the legal profession more inclusive, thus advancing the Constitution’s overriding aim of making it easier for all sorts of people to participate in government.

Still, it’s difficult to see how Breyer could have applied his doctrine to the Court’s decision in Kelo v. City of New London, decided in June. Here, the majority (Breyer included) approved the city’s confiscation of homes and businesses for a private development.

The Constitution allows a state taking of private property for "public use," like a highway or government building. To condone this grand theft governmental, the majority reinterpreted "public use" to mean any use from which the public derives benefit. Thus the jobs and tax revenue to be realized from a riverfront development were used to condone bulldozing a middle-class neighborhood, evicting an 87-year-old woman from a home she’d lived in from birth and other "active liberty" pursuits.

If anything, this outrage increased cynicism about government, making it more likely that ordinary citizens will throw up their hands in disgust and abandon the political process – which may be what the left intended all along.

In a truly daring move, Breyer and his colleagues have decided to use foreign law as the basis for some of their more fanciful decisions (like Lawrence v. Texas). The Founding Fathers also didn’t dream of the day when justices of the United States Supreme Court would decide to surrender our sovereignty to European legislatures and tribunals. And the purpose of the American Revolution was what?

In a review of Active Liberty, Cass Sunstein, a professor at the University of Chicago Law School (who believes the federal courts are dominated by conservatives!), trills: "With this small but important book, Justice Stephen Breyer emerges as a leading theorist of constitutional interpretation on the highest bench in the land. At last there has appeared a direct and substantial challenge, within the Court, to the Constitutional thought of Justice Antonin Scalia, who has long offered an ambitious and forceful account of how to approach the Constitution and laws of the United States."

I doubt Scalia is losing sleep over this direct and substantial challenge to original intent. Scalia’s thinking is grounded in history and logic. Breyer’s is prompted by desperation and based on the left’s perennial illusion that reality is fluid. Stevie Wonder should have called his book: Are You Going To Believe What You See (In The Constitution) – Or What I Tell You?

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Don Feder is a former Boston Herald writer who is now a political/communications consultant. He also maintains his own website, DonFeder.com.


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