Is Justice Breyer channeling John Hart Ely?--

The Wall Street Journal has a teaser story on Justice Stephen Breyer's new 161-page book to be released in a few weeks: "Active Liberty: Interpreting Our Democratic Constitution." I didn't know that Breyer was a disciple of John Hart Ely (and he may not be), but the interpretive theory described in the WSJ's account of Breyer's book sounds a lot like the main argument in Ely's Democracy & Distrust (1980).

Here is the WSJ on Breyer's book:

By contrast [with Justice Scalia's book on interpretation], Justice Breyer's "Active Liberty" contends that judges can undercut the democratic system the Constitution's Framers sought to build if they adhere too literally to legal text and disregard the "real world" consequences of the decisions they render.

So whereas Justice Scalia has voted to strike down campaign finance laws, arguing that they restrict free speech, Justice Breyer espouses a much different theory. He has voted to uphold such laws, arguing that they actually support constitutional values — such as the marketplace of free ideas — by limiting the ability of monied factions to overwhelm other points of view. . . .

The 161-page book, set for publication Sept. 13, aims to popularize ideas Justice Breyer has already advanced in academic lectures and articles. A judge's task, he says, is construing the Constitution in a way "that helps a community of individuals democratically find practical solutions to important contemporary social problems." He calls that freedom to participate in government "active liberty," a complement to passive liberties that protect the individual from interference by the government. . . .

In his book, Justice Breyer contends that originalists can be just as subjective as other judges, reaching the outcome they favor by emphasizing some historical elements and ignoring others. Such a literal reading, he writes, can be "inconsistent with the most fundamental original intention of the Framers themselves."

On, the book description (which is usually put out by the publisher) includes this: "Justice Breyer states that courts should take greater account of the Constitution's democratic nature when they interpret constitutional and statutory texts."

Here is a description of Ely's argument taken from an online review of Ely's 1980 Democracy & Distrust:

Ely's theory of judicial review focuses on allowing everyone equal input in the representative part of the government and free participation in the political process. If the government is a fair representation of the beliefs of the nation, the Supreme Court does not need to make value judgments with one exception, which is the other half of the theory. The Court must not allow the majority to take advantage of the minority. Ely admits that both of these require certain value judgments by the Court; however, the values of fair representation and protecting minorities were invoked by the Founding Fathers. For example, James Madison wrote in The Fe[de]ralist no. 51, "It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. If a majority be united by a common interest, the rights of the minority will be insecure."

I have ordered my copy of Breyer's new book. I can't wait to see how Breyer's democracy-enhancing interpretative strategy differs from Ely's democracy-enhancing interpretative strategy. I hope that in his book Breyer details how his theory follows or differs from Ely's, and that he deals with the criticisms that have been made of Ely's thesis.

Also, to the extent that Ely actually applies his democracy-enhancing approach in a very different way from Breyer's, I wonder about the amount of judicial discretion that might be inherent in democracy-enhancing approaches (would this be more or less than other interpretive approaches?). For example, Ely was hostile to extensive administrative rulemaking because bureaucrats were not elected, and Ely (though favoring abortion) was highly critical of the original decision in Roe v. Wade, but not of its progeny because of stare decisis (from Wikipedia), :

Ely wrote several influential law review articles, including a devastating critique of the Supreme Court's decision in Roe v. Wade in an article entitled "The Wages of Crying Wolf," published in the Yale Law Review, wherein he argued that the Court's decision protecting abortion rights was wrong "because it is not constitutional law and gives almost no sense of an obligation to try to be."

Ely's most notable work, however, was his 1980 book Democracy and Distrust, which ranks as one of the most influential works about Constitutional law ever written. In it, he argues against "interpretivism," of which Hugo Black was an exponent, and "originalism," advanced by Justices such as Antonin Scalia, by contending that "strict construction" fails to do justice to the open texture of many of the Constitution's provisions; at the same time, though, he maintains that the notion that judges may infer broad moral rights and values from the Constitution is radically undemocratic. Instead, Ely argued that the Supreme Court should interpret the Constitution so as to reinforce democratic processes and popular self-government, by ensuring equal representation in the political process on procedural grounds . . . .

Interestingly, Ely was born the same year as Breyer and they were in the same cohort as Harvard professors from 1973 to 1980. Ely's book came out 10 months before Breyer left Harvard to join the First Circuit in December 1980, so it would have been by far the leading book on judicial interpretation when Breyer first became a judge. Ely died of cancer in 2003.