Active Liberty: Interpreting
Our Democratic Constitution
Thom Hartmann's "Independent Thinker" Book
of the Month Review
On February 14, 2006, the Associated Press quoted U.S. Supreme Court
Associate Justice Antonin Scalia, while addressing the Federalist Society
in Puerto Rico, as criticizing "those who believe in what he called
the 'living Constitution.'" The specific quote from Scalia was:
"[T]he argument of flexibility . . . goes something like this:
The Constitution is over 200 years old and societies change. It has
to change with society, like a living organism, or it will become brittle
and break. But you would have to be an idiot to believe that . . .
. The Constitution is not a living organism, it is a legal document."
The main "idiot" the Scalia was referring to - a point not
lost on most in the legal or political fields - was U.S. Supreme Court
Associate Justice Stephen Breyer, who along with the majority of his
and Scalia's peers agreed with the Founders of our nation and the Framers
of the Constitution that it was a document that should change with the
If Thomas Jefferson were to be consulted, there is little doubt he
would disagree with Scalia and his extremist conservative compatriots
on the Court. In a letter to Samuel Kercheval on July 12, 1816, eight
years after he'd left the presidency of the United States, Jefferson
wrote clearly and unambiguously his thoughts on the nature of our Constitution
and the Founders' and Framers' opinion of it being a legal document or
something that should change with the times.
Jefferson even went so far as to suggest that the Constitution should
be regularly revisited, and expressed his concern that if it were not,
and society were rigidly maintained as it were in 1787 when the Constitution
was written, society would crumble; an oligarchy of, by, and for "the
rich" would arise and increase the public debt for their own enrichment;
the middle class would be destroyed; and Americans would become mere "automatons
SIR,--I duly received your favor of June the 13th, with the copy of
the letters on the calling a convention, on which you are pleased to
ask my opinion.. .... The infancy of the subject at that moment, and
our inexperience of self-government, occasioned gross departures in
that draught from genuine republican canons. In truth, the abuses of
monarchy had so much filled all the space of political contemplation,
that we imagined everything republican which was not monarchy. We had
not yet penetrated to the mother principle, that "governments
are republican only in proportion as they embody the will of their
people, and execute it." Hence, our first constitutions had really
no leading principles in them. ...
"Where then is our republicanism to be found? Not in our Constitution
certainly, but merely in the spirit of our people. That would oblige
even a despot to govern us republicanly. Owing to this spirit, and
to nothing in the form of our Constitution, all things have gone well.
But this fact, so triumphantly misquoted by the enemies of reformation,
is not the fruit of our Constitution, but has prevailed in spite of
it. Our functionaries have done well, because generally honest men.
If any were not so, they feared to show it.
"But it will be said, it is easier to find faults than to amend
them. ... Only lay down true principles, and adhere to them inflexibly.
Do not be frightened into their surrender by the alarms of the timid,
or the croakings of wealth against the ascendancy of the people. ...
"I am not among those who fear the people. They, and not the
rich, are our dependance for continued freedom. ...
"Some men look at constitutions with sanctimonious reverence,
and deem them like the ark of the covenant, too sacred to be touched.
They ascribe to the men of the preceding age a wisdom more than human,
and suppose what they did to be beyond amendment.
"I knew that age well; I belonged to it, and labored with it.
It deserved well of its country. It was very like the present, but
without the experience of the present; and forty years of experience
in government is worth a century of book-reading; and this they would
say themselves, were they to rise from the dead.
"I am certainly not an advocate for frequent and untried changes
in laws and constitutions. I think moderate imperfections had better
be borne with; because, when once known, we accommodate ourselves to
them, and find practical means of correcting their ill effects.
"But I know also, that laws and institutions must go hand in
hand with the progress of the human mind. As that becomes more developed,
more enlightened, as new discoveries are made, new truths disclosed,
and manners and opinions change with the change of circumstances, institutions
must advance also, and keep pace with the times.
"We might as well require a man to wear still the coat which
fitted him when a boy, as civilized society to remain ever under the
regimen of their barbarous ancestors. It is this preposterous idea
which has lately deluged Europe in blood. Their monarchs, instead of
wisely yielding to the gradual change of circumstances, of favoring
progressive accommodation to progressive improvement, have clung to
old abuses, entrenched themselves behind steady habits, and obliged
their subjects to seek through blood and violence rash and ruinous
innovations, which, had they been referred to the peaceful deliberations
and collected wisdom of the nation, would have been put into acceptable
and salutary forms.
"Let us follow no such examples, nor weakly believe that one
generation is not as capable as another of taking care of itself, and
of ordering its own affairs. Let us, as our sister States have done,
avail ourselves of our reason and experience, to correct the crude
essays of our first and unexperienced, although wise, virtuous, and
well-meaning councils. ...
"Each generation is as independent of the one preceding, as
that was of all which had gone before. It has then, like them, a right
to choose for itself the form of government it believes most promotive
of its own happiness; consequently, to accommodate to the circumstances
in which it finds itself, that received from its predecessors; and
it is for the peace and good of mankind, that a solemn opportunity
of doing this every nineteen or twenty years, should be provided by
the Constitution; so that it may be handed on, with periodical repairs,
from generation to generation, to the end of time, if anything human
can so long endure.
"It is now forty years since the constitution of Virginia was
formed. The same tables inform us, that, within that period, two-thirds
of the adults then living are now dead. Have then the remaining third,
even if they had the wish, the right to hold in obedience to their
will, and to laws heretofore made by them, the other two-thirds, who,
with themselves, compose the present mass of adults?
"If they have not, who has? The dead?
"But the dead have no rights. They are nothing; and nothing
cannot own something. Where there is no substance, there can be no
accident. This corporeal globe, and everything upon it, belong to its
present corporeal inhabitants, during their generation. They alone
have a right to direct what is the concern of themselves alone, and
to declare the law of that direction; and this declaration can only
be made by their majority. ...
"If this avenue be shut to the call of sufferance, it will make
itself heard through that of force, and we shall go on, as other nations
are doing, in the endless circle of oppression, rebellion, reformation;
and oppression, rebellion, reformation, again; and so on forever.
"These, Sir, are my opinions of the governments we see among
men, and of the principles by which alone we may prevent our own from
falling into the same dreadful track."
As you can see from this rather lengthy (and not previously published
in its long form since 1904) quote from Jefferson, in the minds of the
Founders and the Framers, the "idiot" would be Antonin Scalia.
So what about the other side of the Court? Although there is no "liberal
wing" to today's Court, Breyer is one of the most articulate of
the "moderates" on the court. (In this, I'd suggest his "moderate" perspectives
are probably most similar to those of Eisenhower, Nelson Rockefeller,
JFK, and today's "moderates" like Olympia Snow, Susan Collins,
and Joe Biden.)
Justice Stephen Breyer opens his book - it's first paragraph - with
several quotes from Jefferson expressing similar sentiments to those
laid out above. The core of his book is the struggle of modern Justices
to "interpret" a document written in a very different age
and time for a very different society, while yet staying true to the
core principles the Framers put forward.
In a chapter entitled "Speech," for example, Breyer talks
about how this collision of founding precepts and changing times require
careful examination. He refers to his vision of his work as a Supreme
Court Justice as "active liberty" (in opposition to Scalia's "originalism"),
and lays out this example:
"The first example focuses on the First Amendment and how it
applies if the government seeks to regulate certain activities affecting
speech, in particular campaign finance, corporate advertising about
matters of public concern, and drugstore advertising informing the
public that custom-made pharmaceuticals are available. These examples
show the importance of reading the First Amendment not in isolation
but as seeking to maintain a system of free expression designed to
further a basic constitutional purpose: creating and maintaining democratic
Breyer then points out that the First Amendment doesn't differentiate
between these various types of "speech," but notes that "active
liberty is particularly at risk when law restricts speech directly related
to the shaping of public opinion..." He adds in the next paragraph, "Second,
whenever ordinary commercial or economic regulation is at issue, this
special risk is normally absent."
Already we're slicing and dicing the words of the Founders, but in
Breyer's view this is absolutely essential - in the context of understanding
them and understanding our modern society - to maintain "active
liberty" in the United States. Speaking of campaign financing, he
"The campaign finance problem arises out of the explosion of
campaign costs, particularly those related to television advertising,
together with the vast disparity in ability to make a campaign contribution.
In the year 2000, for example, election expenditures amounted to $1.4
billion, and the two presidential candidates spent about $310 million.
In 2002, an off-year without a presidential contest, campaign expenditures
still amounted to more than $1 billion. A typical House election cost
$900,000, with an open seat costing $1.2 million; a typical Senate
seat cost about $4.8 million, with an open contested seat costing about
"Comparable expenditures in foreign democracies are far lower.
A typical British or Canadian parliamentary election involves expenditures
for individual seats of about $13,000 and $43,000 respectively. ...
"A small number of individuals and groups underwrite a very
large share of these costs. In 2000, about half the money the parties
spent, roughly $500 million, was soft money, i.e., money not subject
to regulation under the then current campaign finance laws. Two-thirds
of that money - almost $300 million - came from just 800 donors, each
contributing a minimum of $120,000. ... At the same time, 99 percent
of the 200 million or so citizens eligible to vote gave less than $200.
Ninety-six percent gave nothing at all."
So, asks Breyer, how is the Court to consider laws that may restrict "speech" -
particularly the most vital form of speech of all, political speech -
when increasingly it's becoming something quite unimagined by the Framers
of the Constitution?
"It is difficult to find an easy answer to this basic constitutional
question in language, in history, or in tradition. The First Amendment's
language says that Congress shall not abridge 'the freedom of speech.'
But it does not define 'the freedom of speech' in any detail. The nation's
Founders did not speak directly about campaign contributions. Madison,
who decried faction, thought that Members of Congress would fairly
represent all their constituents, in part because the 'electors' would
not be the 'rich' any more than the 'poor.' But this kind of statement,
while modestly helpful to the cause of campaign finance reform, is
far from determinative.
"Neither can we find the answer through the use of purely conceptual
arguments. Some claim, for example, that 'money is speech.' Others
say 'money is not speech.' But neither contention helps. Money is not
speech, it is money. But the expenditure of money enables speech, and
that expenditure is often necessary to communicate a message, particularly
in a political context. A law that forbade the expenditure of money
to communicate could effectively suppress the message.
"Nor does it resolve the problem simply to point out that campaign
contribution limits inhibit the political 'speech opportunities' of
those who wish to contribute more. Indeed, that is so. But the question
is whether, in context, such a limitation is prohibited as an abridgment
of 'the freedom of speech.' To announce that the harm imposed by a
contribution limit is under no circumstances justified is simply to
state an ultimate constitutional conclusion; it is not to explain the
This sort of an analysis portrays the brilliance of Breyer's mind,
and exposes his desire to be true to Founding principles in a modern
context free of his own political bias. Unlike Scalia, Thomas, or Roberts
- who have demonstrated in the Oregon Death With Dignity decision a willingness
to interject their own personal religious and political perspectives
into a decision, which even contradicted their own previous assertions
about the importance of respecting the Tenth Amendment's provisions of "states'
rights" - Breyer is ever the even-handed pragmatist. He continues
in his chapter on speech:
"Once we remove our blinders,
however, paying increased attention to the Constitution's general democratic
objective, it becomes easier to reach a solution. To understand the
First Amendment as seeking in significant part to protect active liberty,
self government,' is to understand it as protecting more than the individual's
modern freedom. It is to understand the amendment as seeking to facilitate
a conversation among ordinary citizens that will encourage their informed
participation in the electoral process. It is to suggest a constitutional
purpose that goes beyond protecting the individual from government
restriction of information about matters that the Constitution commits
not collective, decision-making. It is to understand the First Amendment
as seeking primarily to encourage the exchange of information and ideas
necessary for citizens themselves to shape that 'public opinion which
is the final source of government in a democratic state.' In these
ways the Amendment helps to maintain a form of government open to participation
(in Constant's words) by 'all the citizens, without exception.'
"To focus upon the First Amendment's relation to the Constitution's
democratic objective is helpful because the campaign laws seek to further
a similar objective. They seek to democratize the influence that money
can bring to bear upon the electoral process, thereby bulilding public
confidence in that process, broadening the base of a candidate's meaningful
financial support, and encouraging greater public participation. Ultimately,
they seek thereby to maintain the integrity of the political process
- a process that itself translates political speech into governmental
action. Insofar as they achieve these objectives, those laws, despite
the limits they impose, will help to further the kind of open public
political discussion that the First Amendment seeks to sustain, both
as an end and as a means of achieving a workable democracy."
The logic - and conclusions - of several of the arguments in Stephen
Breyer's book are ones with which many progressives would find discomfort
or outright disagreement (including me), particularly when it comes to
corporate personhood. (I wish he would read my book "Unequal Protection" about
the corrupting of the Supreme Court in 1886.) On the other hand, several
of his insights and deep-diggings are startling, thought-provoking, and
ultimately very common-sensical. Because Breyer is not a doctrinaire
conservative, it is all the more important that the legacy of his thought-process
exist in the form of this book, and that Americans familiarize themselves
with his perspectives on the most important issues of our day.
What is most useful and interesting about "Active Liberty: Interpreting
Our Democratic Constitution" is that it provides an extraordinary
insight into the thought processes a US Supreme Court justice of considerable
intellectual power and genuine integrity uses to decide cases.
This is an important book, made all the more important by Scalia's
ideological attacks on Breyer and his fellow justices. At 135 pages it's
a relatively quick read, and an essential addition to your library.
Thom Hartmann (thom at thomhartmann.com)
is a Project Censored Award-winning best-selling author, and
host of a nationally syndicated daily progressive talk show and
a morning progressive talk show on KPOJ in
Portland, Oregon. www.thomhartmann.com His
most recent books are "The
Last Hours of Ancient Sunlight," "Unequal
The People," "The
Edison Gene", and "What
Would Jefferson Do?"