News & Analysis
Justice Breyer Argues for Activism
U.S. Supreme Court Justice Stephen Breyer's (left) book, Making Democracy Work, A Judge's View, is a combination of history and legal philosophy ... Breyer has sparred for years with Justice Antonin Scalia on the printed pages of legal opinions. The two have even debated about constitutional interpretation in public. And now Justice Breyer has taken his argument to the printed pages of a book written for popular consumption. In his first interview about the new book, Breyer's targets are the ideas of originalism and textualism advocated by Scalia — the notion that the framers of the Constitution meant what they said and no more — and that the provisions of the Constitution are limited to what they covered back in 1789. Breyer's book, Making Our Democracy Work, A Judge's View, is a combination of history and legal philosophy. It argues that there are no easy, color-by-the-numbers answers to many legal questions and that to suggest there are is an illusion. – PBS
Dominant Social Theme: It's not a good system but it's the best we've got.
Free-Market Analysis: In his new book, U.S. Supreme Court Justice Stephen Breyer confronts Justice Antonin Scalia regarding the much-debated issue of originalism and textualism. Scalia wants to read the words of the Constitution and conform to them as strictly as possible – perhaps using a historical frame of reference. In Breyer's book, Making Our Democracy Work, A Judge's View, he argues for a more nuanced approach that includes research into the founders' historical intent, values, etc. Scalia's few seems simpler in this regard: "The Constitution that I interpret and apply is not living, but dead."
For Scalia, arguing that the Constitution's meaning can change over time suggests that judge's can make up new meanings as society changes. Breyer's view is that some things about Constitutional interpretation can change while others do not. He is more inclined to pursue an interpretation that honors perennial values rather than the text. There are all sorts of amorphous words such as "liberty" and "due process" – and these words have to be interpreted within the context of the times.
A telling point that Breyer makes has to do with "cruel and unusual punishment." Flogging, he points out, might have not have been considered cruel or unusual in the Western world in the 1800s but today it is likely considered so. Thus a judge, Breyer suggests, must use his or her own judgment and include a frame of reference, historical perspective and ask what the purpose of the law was supposed to be.
Breyer's book includes more than personal opinion. He covers high-profile Supreme Court decisions including those having to with the Dred Scott decision affirming the constitutionality of slavery and the Court's terrible determination of President Franklin Roosevelt's decision to intern 70,000 Japanese U.S. citizens in prison camps during World War II. In 1988, the US Congress formally apologized and paid reparation in 1988.
Breyer seems to have a pleasant personality and despite his lofty position doesn't take things too seriously. The article excerpted above presents the following insight: "With wry self-deprecation, he adds that when he gets discouraged, he tells himself 'so what? ... I've written down what I thought, and every case is a new day.'" But in an interview with Fox News, Breyer does reveal a deeper reason for writing this book: He says he wants citizens to understand his institution better at a time when institutions generally in the United States (and abroad) are coming into some "disrepute."
Breyer deserves full credit for being perceptive enough to realize that times have changed. He does not mention the Internet, or not as a causative agent so far as we can tell (having not read the book). But he certainly does make the point that justice needs to evolve along with technology. AP reports his views regarding technology as follows:
Don't expect a Facebook friend request from Supreme Court Justice Stephen Breyer any time soon. The 72-year-old justice said in a speech at Vanderbilt Law School on Tuesday that he was perplexed when he recently saw the film "The Social Network" about the origins of Facebook. But Breyer said the film illustrates his argument that modern conditions — like the development of the social-networking site — should inform justices when interpreting a Constitution written in the 18th century. "If I'm applying the First Amendment, I have to apply it to a world where there's an Internet, and there's Facebook, and there are movies like ... 'The Social Network,' which I couldn't even understand," he said. Breyer said of the high court: "It's quite clear, we don't have a Facebook page." – AP
There is something odd about a group of fairly elderly men and women trying to grapple with the intricacies of modern technology. Why is it even necessary? Why is it that the market itself is not capable of ensuring solutions for most, if not all, technological issues? The larger issue that looms unspoken is why the Supreme Court is, finally, the "law of the land." As Breyer himself pointed out in his interview on Fox News, he is but one person and it is his job to interpret the law for 300 million others. That is a mighty big task.
Here at the Bell we are consistent advocates for common law justice as it was applied before Roman law and before British Common Justice and Admiralty Law superseded it. The kind of common law justice we have in mind is distinctly informal and familial; it was applied in America before the Revolution. It allows individuals and groups of individuals to resolve their differences face-to-face or using the services of a third party.
There is no doubt of course that such common law justice had as its bedrock a level of lurking violence. Duels between men were frequent when issues could not be worked out and common law societies tended to have more elaborate personal codes of polity and honor in order to avoid the friction that could lead to violence – either individually or between families.
One of the points that Justice Breyer makes is that the current system of jurisprudence employed throughout the West and of course in America has helped preclude the civil violence that comes from unresolved legal issues. But as with most issues, there are-trade offs. Civil society itself may have fewer individuals seeking to resolve their legal issues individually, but there is nothing intrinsically non-violent about justice as it is practiced in the West and especially in America. With between 3 and 6 million individuals incarcerated in various municipal, state and federal prisons, America especially is beginning in a sense to rival the gulags of the former Soviet Union.
The situation is exacerbated by the predilection of the American penal-industrial complex to turn more and more of its workings over to private contractors to save money. These private contractors have tremendous incentives to economize by mistreating prisoners and using inmates as a kind of low-paid labor force for production purposes. Justice Breyer may be interested in the "big picture" but in fact the system of jurisprudence over which he presides is both merciless and unjust, as all monolithic systems must be.
Given the problems that Western and American jurisprudence actually faces, the points that Breyer argues in his book – those having to do with how to interpret the Constitutional in particular – are perhaps only surface issues. The deeper issue in our view will be how the establishment justifies the system, and tries to revise it, as the truth-telling of the Internet continues to provide different points of view to society at large.
Conclusion: There are many ways of providing justice; Western regulatory democracy with its intrusive tax system, vast civil policing mechanism, increasing, lawless wiretapping and surveillance and Draconian punishments for minor offenses may have evolved into a more tyrannical variety. The changes that will doubtless arrive, sooner or later, could be a good deal more radical than a reinterpretation of how to delve into US founders' intent.
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Posted by Mike88 on 12/21/10 11:08 AM
My question is whether or not the citizens of this nation actually need to be governed at all. To be governed is to be controlled and a free people are not a controlled people.
We the united states is the only Constitutional Republic on the planet, and all citizens are sovereign individuals meaning they are kings of their own castles(properties).
Each person can govern themselves as long as they don't harm or cause harm to anybody else. That is the very meaning of a free society.To make laws rules or regulations that disarm sovereign individuals or not allow said individuals to openly carry their arms(weapons)in plain sight is actually unConstitutional and morally wrong and many states do this already which is in direct violation of our founding fathers meanings that they put into the 2nd Amendment.
If all individuals are free and sovereign citizens then the ability to arm yourself and openly carry your arms should not be illegal or even an issue. If more citizens were allowed to openly cary their arms then the crime rate in this nation in general would be insignificant to say the least.
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Posted by Joe on 12/14/10 10:05 PM
Have any of you read Lysander Spooners "The Constitution of No Authority"? Available for free, Google it. We haven't been under a constitutional form of government since Lincoln invaded the South in 1861. The unlawfully passed 14th amendment was the total end of the States as countries in a federation. Don't forget about the original 13th amendment. I think you all need to do some research on the history of this so called country. The supreme court isn't even the same court as it was before and who gave them the right to interpret the Constitution? The title of Breyers book says it all, "Making Democracy Work". The Constitutional form of government is a republic.
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Posted by Bewer on 12/14/10 12:49 PM
History shows all societies move towards more govt. control except when quickly changing. ie revolution. US Constitution means what it says, and it can be amended. That is the end.
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Posted by Ingo Bischoff on 12/14/10 12:00 PM
"Breyer deserves full credit for being perceptive enough to realize that times have changed. He does not mention the Internet, or not as a causative agent so far as we can tell (having not read the book). But he certainly does make the point that justice needs to evolve along with technology."
If Breyer deserves full credit for being perceptive enough to realize that times have changed, then what praise does he get for failure to realize that "human nature" has not changed for 200,000 years.
The intent of the provisions in the U.S. Constitution have to be evaluted based on the understanding of "human nature" which the founding fathers possessed, not their perception of technology or technological change.
I dare say, that the founding fathers were way ahead of Justice Breyer in understanding "Natural Law". It is "Natural Law" to which the founders tried to adhere with the U.S. Constitution.
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Posted by Bluebird on 12/13/10 10:38 PM
Thank you, Bill Ross, for clarifying that. I was concerned because so many people are looking for ways to overcome the tyranny and some might make a rash decision and wind up not considering their children first. Good luck to you, Mr. Bill Ross!
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Posted by Bill Ross on 12/13/10 10:04 PM
@Bluebird
"How can a person's children be helped with their parents in jail and they are left for the state to raise?"
By making sure that your children are safe, on a path to self-sufficiency and survival BEFORE you take such a risk. Never let the state and their "services" anywhere near children. When all was considered, despite the importance of fighting, I determined it was not my moral right to place my children at risk by me being taken out of the game. So, I bit my tongue and bided my time and prepared to strike when the time was right.
And, so far as going to jail is concerned, that is a very large cost to states. States are already letting actual criminals free, because they cannot afford to keep them. This is an asymmetrical war of attrition. Make them spend far more than you, to deal with you. My only crime is and will remain peaceful non-subservience, the original sin so far as states are concerned and, the hardest for them to counter.
In Canada, they also threaten us with jail. My position is "show me the law" and my opinion is that they are bluffing that income tax is the law of the land or, even plausibly legal.
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Posted by Bluebird on 12/13/10 08:21 PM
@Bill Ross,
I have read and enjoyed your comments for a long time. I also read of your courageous battle for your children. You are to be admired for standing up for what is right. But don't you think it is fair to mention (correct me if I am remembering wrong) to FH that you live in Canada, and not the USA? In the USA, if you refuse to pay your federal taxes you go to jail. How can a person's children be helped with their parents in jail and they are left for the state to raise?
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Posted by Philip Mccormack on 12/13/10 05:53 PM
In his 2005 book Active Liberty, Breyer made his first attempt to systematically lay out his views on legal theory, arguing that the judiciary should seek to resolve issues to encourage popular participation in governmental decisions. This man is unelected, indoctrinated in law school, gets a clerkship with another indoctrinated, unelected Supreme Court Justice Arthur Goldberg, and it's not what you know its who you know.
The whole system is corrupted. If he really wants to write about representative, regulatory democracy (which is not democracy) first define it. Then if he wants to encourage popular participation in governmental decisions (whatever they are ), start in the schools teaching the rights and duties of jurors, something that at some stage would thankfully eliminate the use of Supreme court judges altogether. As Nigel Farage said-"who the hell do these people think they are??
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Posted by RT Carpenter on 12/13/10 05:31 PM
The Supreme Court has become overly politicized. with Justices selected primarily on political and diversity credentials. The last nominee to be widely admired for intellectual capacity and scholarship was Robert Bork. I thought he was overly conservative, but the Court needs the kind of reasoning and debating ability he demonstrated.
Scalia seems a bully and Thomas a timid diversity selection. None of the others were among the most respected of possible candidates, and it shows in their frequent 5 to 4 decisions.
I held a low level judicial position at one time and, as a citizen, would appreciate seeing our most challenging law cases handled by our best thinkers.
Fortunately, cases are often "briefed" by top attorneys and the Justices can hire outstanding law school graduates as "clerks" to set down their opinions/decisions.
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Posted by FH on 12/13/10 05:26 PM
@ John Blenkins
I am glad you found them interesting. I have listened to them over and over. By the way, in case you haven't noticed, Robert LeFevre has a number of other interesting audios. Just click on hi name or go to
Click to view link
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Posted by FH on 12/13/10 04:37 PM
@ Bill Ross
"You charge, I'll follow."
I say that with a little bit of humor intended. I enjoy reading what you have to say and always look for you in the feedback. You have thrown a lot (for me at least) my way today and I will have to think about it.
Obviously, we both read the Daily Bell and are trying to improve our understanding of the world situation. And (I think) we are both concerned about the future of the world and whether we (or our children) will be slaves (even more than we already are) or free people.
If enough of us feel this way, I am sure good things will happen. We all want to "skin the cat". Just remember there is more than one way to skin a cat (so I'm told).
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Posted by Cogitor on 12/13/10 04:34 PM
FYI Lincolns income tax was declared unconstitutional by the Supreme Court. There is a case now presented before the Supreme court that shows that the 16th amendment ( the income tax) was never ratified. The Supreme Court doesn't want to touch this hot potato. check it out.
Click to view link
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Posted by John Blenkins on 12/13/10 04:06 PM
@FH
Thanks for the constitution links very informative.
Clearly interpretation for Breyer, is as John Danforth put it what i tell you it is.Others tell us what they think the founding fathers meant almost as if they were there.
You have got to smell a rat at the way Jefferson was marginalized and Franklin declared it can only lead to tyranny for there is nothing to stop it.
How about, "We the People" is not as it seams but we the people
The 56 UNDERSIGNED That put a whole new take on matters and would fit in with how this gives power to the govt and serves to deceive the people.You can't quote the constitution in a US court. That tells all.
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Posted by Michael Ponzani on 12/13/10 04:05 PM
I wish people would actually read the book before writing a review. But that's ok. You don't have to see the play, watch the movie or even attend tghe sporting event. Just use the scorecard and write the sports article!!
Reply from The Daily Bell
You go read it and let us know if your conclusion varies substantively from ours.
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Posted by Pete 8 on 12/13/10 03:47 PM
Hear Hear Here!
Thankyou Bill.
The current social contract is void as operated " time for a new one that works. Contracts based on deception are unsustainable.
Thanks to IT, the conversation this will require of us all, is now possible. But in the mean time, I would urge anyone with the literacy to state their view, to do so peaceably.
Safety in numbers. Keep asking the hard questions " Everyone.
Have Hope " IT is coming sooner than you think :)
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Posted by John Blenkins on 12/13/10 02:53 PM
@FH;
Thanks for the links to L V Mises Institutes take on the constitution. As a non American it was very enlightening.
Interpretations as John Danford puts it is the constitution is what
i tell you it is. RE tptb. Others say what the founding fathers really meant.
How about, WE the people of the United States. Only meaning the 56 who undersigned. That would certainly explain how the state and the law have made it work for them.
Benjamin Franklin amongst others knew it would end in tyranny
as there is nothing in the document to stop it.
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Posted by Bill Ross on 12/13/10 01:49 PM
@FH
"But, 'I' know for a fact..."
And, I KNOW for a fact that slavery is not possible unless voluntarily undertaken.
Voluntary used to be defined as: Fully informed, willing consent.
Voluntary now, for all practical purposes is: If you choose, independent of reasons (being defrauded, terror, yada yada), it is voluntary.
"You are a courageous man."
No, I am an intelligent person who has concluded it is "take a risk and chance of success NOW, or face the certainty of doom later". I am also a parent, so the scope of my concern is for more than myself.
Many judges have already had a crack at me (self-represented). I saw the flashes of terror in their eyes, on multiple occasions when I demanded to be "treated equally, in terms of rights and responsibilities", according to the "rule of law" prior to their inept attempts to smite me. They blinked, I didn't.
If I take a risk, it is in timing. The system is collapsing faster than they can deal with harpies such as me striking at the root and the cumulative, inevitable consequences of their "control". Elites have far greater problems than me. Dealing with me in an open court of law will just accelerate the process by showing them as the idiots they are. Now, the internet (we, the people) is WATCHING and judging, everything.
Just doing my part, for common interest. Exciting, worthwhile and highly recommended. Even if I don't know you, I still care about you. If it is established that it is "reasonable" to destroy you and yours, well, at some point it will be considered "reasonable" to destroy me and mine. This is pure self-interest, not a hint of altruism, which I doubt exists, apart from pretexts.
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Posted by FH on 12/13/10 01:01 PM
@ Bill Ross
You are a courageous man.
But, 'I' know for a fact that the IRS will pursue you to the end of the earth if you (1) pose a threat to them (e.g. Irwin Schiff) or (2) what they can recover from you is worth their time or (3) they want to make an example of you or (4) you start to be an irritation to them (dog nipping at the heals of a grizzily bear.)
I advocate Kamikase maneuvers when they will do some good. In the mean time (when facing a vastly superior adversary) I prefer the Scarlet Pimpernel approach.
I once knew a freshman at a military school who devised a plan with his fellow freshmen to break ranks and toss their company commander in the shower. He would start the charge and the rest would follow. Well, he started the charge and none followed. He did learn from his experience.
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Posted by Bill Ross on 12/13/10 12:21 PM
"society changes. What constitutes "cruel and unusual punishment", is one of those areas."
Oh? I am sure that every individual whom has been "cruel and unusually punished", for all of history has not changed their opinion one bit.
What has changed is what the group considers "reasonable" to do to individuals who may stand in the way. The Nazis proved where this leads. Life is about individuals, not artificially defined groups interacting.
Individuals are of one mind and have been for all of history we do not want to be "cruel and unusually punished". We want to be free, to pursue our peaceful lives and affairs, not be sucked into fraudulent "grand social endeavors", profiting only manipulators.
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Posted by Bill Ross on 12/13/10 12:12 PM
@FH
"are VOLUNTARILY paying our taxes each year."
Yes, you ARE. It is a matter of personal terror of the consequences of not doing so. I, for one have chosen NOT to. I use the fact that they do not dare prey on lower income people that much (social backlash), to reduce my provable productivity to the point that I am morally neutral, meaning, the state has nothing left over from my contributions to engage in crime. I can and do "throw the first stone". I use the principles in "Mathematics of Rule". By the macroeconomic stats, this is what the productive are doing, in general:
Click to view link
And, if you think about it, the state and its unproductive dependents (government workers " oxymoron, social services dependents, subsidized industries, legislatively advantaged groups, ...) effectively pay no taxes, since they consume tax dollars. To pay some tax from tax derived income is just a shell game, an illusion. They produce and therefore contribute NOTHING. Only the productive REALLY pay taxes and, taxes are being used to DESTROY the productive. At least HALF of US citizens are parasites to the other half (and the unborn, who have been placed in perpetual financial servitude, with no CHOICE).
YES, you voluntarily pay taxes because YOU have voluntarily chosen to avoid the personal consequences. By doing so, you have become complicit in crimes against peace and humanity and also, traded away your long term survival and, that of your civilization, country, fellow citizens and children. THINK about it:
Click to view link
Productivity has already been destroyed, which is WHY they are moving over to consumption taxes, to destroy existing wealth. They intend a reset to tyranny once all of the stored wealth of civilization has been redistributed and the baby boomers are no longer capable of defense.
Now is not the time to be faint-hearted.
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