The perils of “living constitutionalism”

Justice Stephen Breyer will retire from the U.S. Supreme Court at the end of the court’s current term. His 27 years of service on the highest court in the land have a lot to teach us, but they also offer a cautionary tale about the dangers of a theory of judging known as “living constitutionalism.”

Breyer has a high view of democracy—albeit one that doesn’t always come through in his theory of constitutional interpretation. In his book Active Liberty, he heralds the freedom of self-government guaranteed by our Founders. He quotes Thomas Jefferson for the proposition that there is “no safe repository for the ultimate powers of the society but the people themselves.” And even more, Breyer notes that the framers cemented in the Constitution “the freedom of the individual to participate in the government and thereby to share with others the right to make or control the nation’s public acts.” The Constitution, in other words, guarantees to each of us the right to participate in self-government.

It is in the application of these high-minded principles that Breyer’s jurisprudence runs into trouble. To effectuate the Constitution’s call to democratic participation, he urges courts—not voters—to be more active. Ironically, in the Constitution’s call to self-government, Breyer finds “a source of judicial authority.”

Further, Breyer is a pragmatist. He worries about interpreting the words of the Constitution “in a way that they will no longer work for a country of 308 million Americans who are living in the 21st century.” The consideration of practical consequences, Breyer has posited, will help the country find “practical solutions to important contemporary problems.”

Breyer wants to see government work. And don’t we all? But for Breyer, the desire to see government work effectively and efficiently manifests itself in judicial, rather than democratic, authority. Living constitutionalism is more concerned with the policy outcome of a decision than the actual words our Founders wrote.

This is a problem. If the words of the Constitution or a statute are not determinative for purposes of judicial interpretation, a judge is free to impose his own policy preferences. And if the Supreme Court decides a constitutional issue—be it marriage or life or anything else—that leaves the rest of us without recourse. Federal judges are not politically accountable, and our elected representatives can’t change a court decision short of a constitutional amendment.

Take Roe v. Wade. Breyer is one of Roe’s most stalwart defenders. But there is nothing democratic about Roe. When that case was decided in 1973, it overturned the democratically enacted pro-life laws of nearly every state. It took away from the states and the people the ability to protect life. And it legislated from the bench an abortion policy more radical and less protective of life than nearly every other nation in the world.

The sort of judicial philosophy that allows judges to impose their own views when the Constitution is silent on an issue does not reinforce democracy. Rather, it vests ultimate control of important social and economic issues in a majority of unelected judges on the highest court in the land.

There is another way. Originalism and textualism take as their lodestar the words of the Constitution and federal statutes. Originalism does not invite a judge to make the law what he or she thinks it ought to be or to interpret a statute to promote government efficiency. It depoliticizes the judiciary. And it is consistent with the constitutional role of judges—one limited to interpreting the Constitution and statutes, not rewriting them to achieve what a judge believes to be the best result.

Justice Breyer recently reminded us that justices are not a “bunch of junior varsity politicians.” But the best remedy to the perception that judges sometimes act like politicians in robes is for the federal courts to forgo updating the Constitution according to their own inclinations and instead interpret the Constitution, and democratically enacted laws, according to their text.