Breyer at Princeton:

On Sunday, my Dad and I saw Justice Stephen Breyer speak with Robbie George at Princeton University at an event sponsored by George's James Madison Program (two other University groups co-sponsored the event).

The event was great. Breyer was there to discuss his new book, Active Liberty. We sat over to the side in the front row, right in front of former Attorney General Nicholas Katzenbach, who had in an earlier era hired Breyer to work in the federal government (so every time Breyer made eye contact with his old boss, he had to look through me).

On the substance of his speech, Breyer noted that the Constitution ultimately establishes a "democracy," such that the concept of "democracy" is the lens through which the document should be interpreted and understood. Now, some on the political right (tending to be on the cranky right) note that the US is not a democracy, but rather a republic, and that the term "democracy" isn't even mentioned in the Constitution. Akhil Amar in his book on the Constitution debunks this as a canard. The US is a democracy and the Declaration of Independence and the Constitution establish us as so. We are, however, a particular type of democracy. We are a representative, as opposed to direct, democracy. And we are a liberal democracy (meaning individuals hold rights that are prior to majority rule). The word democracy, in this broad sense, simply means elections and voting. The United States is a democratic constitutional republic.

Many conservatives like Justice Scalia and Robert George wisely shy away from the notion that the concept of "democracy" was antithetical to our Founding Fathers because they likely see how such a notion could support so called "judicial activism." Scalia et al. after all, are notable for endorsing a theory of judicial restraint, where unless a particular specific right is found within the text of the Constitution (or deeply embedded in our traditions), democratic legislatures, ultimately expressing the will of the people through duly elected representatives, should decide nearly all political matters, including issues of substantive rights and limits of government action.

(WorldnetDailey are typical of those on the cranky right who would at once decry that the US is not a democracy because democracy means mob rule, the word democracy is not found within the Constitution, but then simultaneously criticize "activist judges" for striking down legislation because such action doesn't respect the democratic will of the people. I don't think those folks are savvy enough to realize their contradiction of sentiment.)

But all of this brings to mind my major critic of Breyer's theory, which is also my major critic of Scalia's theory (which also identifies a kernel of Truth in the cranky right's notion that "we are not a democracy, but a republic"): Both Scalia and Breyer give the concept of "democracy," and respect for the actions of legislatures, far too much accord. Legislatures, and not courts or even the executive, are the greatest threat to liberty. Our founders did realize this; they did fear mob rule. So when it came time to establishing our "democracy," they built in republican checks. Because, God knows, "democracy" needs checks, or else we would have mob rule. One of those checks is that laws are passed by representatives, not by the people themselves (and those representatives, tending to be more elite than the people, may not always do the people's bidding). Another check is that individual rights are antecedent to majority rule (the "liberal" qualifier, in "liberal democracy").

Giving a court of nine the final say over individual rights also, I think, better safeguards such rights. This is something that Breyer also mentioned. But it is not consistent with "democratic" theory, which sees democracy as an end in itself as opposed to a means to an end (protecting individual rights).

Breyer mentioned Justice Jackson's famous saying, "We are not final because we are infallible, but we are infallible only because we are final," which means that someone has to have the last word, and for a variety of reasons it makes sense that it's the Court. Note: This doesn't mean other branches of government don't have a say; they just don't get the last word. Congress has a say over interpreting the Constitution: They are supposed to know their constitutional limits and refrain from passing unconstitutional laws. Likewise, the executive has the option of vetoing any law with which he disagrees on policy grounds; but by taking an oath to uphold the Constitution, the executive is duty bound to veto laws which he thinks are unconstitutional. Finally, if such a law makes it to stage three, the courts get to exercise judicial review. If the legislatures had the final say, we'd never get to stage three. The more stages a particular piece of legislation must go through, testing it for constitutionality, the better to safeguard against the all too common error of unconstitutional legislative actions. If legislatures have the final say, then what's to stop them from enacting unconstitutional laws? The biggest problem, crisis indeed, of modern government is judicial restraint, as exemplified by the Kelo case. Kelo involved a court letting stand a tyrannical and unconstitutional action of a legislature when it should have actively struck it down.

Those who decry "judicial activism" and think that we are being ruled by courts because judges like to strike down laws while "discovering" new rights can't see the forest for the trees. It's the legislatures stupid, who pose the greatest threat to liberty.