Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES
President George W. Bush has acclaimed Associate Justices Antonin Scalia and Clarence Thomas as models for Supreme Court appointments. Associate Justice Stephen Breyer, the flip side of Justices Scalia and Thomas, underscores President Bush's judicial wisdom.
In a series of lectures at Harvard University on Nov. 17-19 styled "Our Democratic Constitution," Justice Breyer celebrates an extraconstitutional and pliable standard of interpretation indistinguishable from rule by Platonic Guardians. His teaching that "active liberty" as conceived by a French political philosopher in 1819 should inform Supreme Court edicts makes the case for Mr. Bush's likely appointees better than the president himself.
Like legislative and executive authority, legitimate judicial power must be anchored in the Constitution. Article III and companion provisions empower the Supreme Court to interpret the nation's Founding charter and federal statutes in litigation. To interpret means to apply the text in accord with customary linguistic usage and the discernable purposes of its authors. That coherent standard, despite occasional difficulties in application, confines disagreements to the molar or molecular.
In contrast, Justice Breyer's interpretive North Star, plucked from the scribblings of Frenchman Benjamin Constant, is an "active liberty, consisting of a sharing of a Nation's sovereign authority among that Nation's citizens." The liberal appointee of President William Jefferson Clinton rhapsodizes over Constant's utopian visions: "active and constant participation in collective power [by every citizen]"; "sub[mission] to all the citizens without exception the care and assessment of their most sacred interests;" [and] ennoble[ment] [of the people's] thoughts and establish[ment] among them [of] a kind of intellectual equality which forms the glory and power of a people." The associate justice discovers a new constitutional right that had eluded his predecessors for more than two centuries - the people's right to an active and sleepless participation in the exercise of sovereign power, and elaborates that, "The people must have room to decide and leeway to make mistakes."
To paraphrase a memorable characterization of the ill-fated Charge of the Light Brigade, the justice's imagination is magnificent, but it makes for wretched constitutional law. The Founding Fathers feared direct democracy and circumscribed the franchise accordingly. Neither women nor blacks nor nonproperty owners were guaranteed a right to vote. State legislators elected senators and established the method of selecting presidential electors. The latter were expected to exercise independent judgment free from popular follies.
As James Madison amplified in The Federalist Papers, if every Athenian citizen were a Socrates, an assembly consisting of all would still be a mob. The legislative power was thought most vulnerable to abuse. Checks such as bicameralism and a qualified veto were …