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Tuesday, November 15, 2005

Active Liberty and Its Discontents

My old friend and teacher, Peter Berkowitz, has an new review essay of Justice Breyer's new book, Active Liberty, available here.  Compare Peter's conclusions with Cass Sunstein's over at TNR.  Interestingly, both PB and CS are surprisingly gentle in the way that they take Breyer to task for failing to answer certain key objections from a Scalia-like interlocutor.  Does Breyer get softer treatment at the hands of these two writers (both of whom are capable of landing hard -- but not foul -- blows) merely because he's a SCT justice?  In any event, I second the view of Will Baude that Breyer should have submitted his book to the scrutiny of written replies the way Scalia did in Matter of Interpretation.

Posted by Administrators on November 15, 2005 at 08:45 AM in Law and Politics | Permalink


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Very interesting and enjoyable comment from Berkowitz; I have yet to pick up Justice Breyer's book, which - as with all Breyer's writings - I expect to thoroughly enjoy and thoroughly disagree with. However, I have to enter a plea of "huzzah!" for Berkowitz, who writes:By and large, conservatives are convinced that fidelity to the Constitution, in particular to its original meaning, requires the Court to scale back the powers acquired by the federal government during the last half of the twentieth century.Huzzah! He wrote "original meaning" not "original intent"!

When I originally started contributing to Wikipedia's article on Originalism, I had not the faintest idea of just how widespread and pernicious the attempt to falsely conflate Originalism with Original intent had become. Even Black's Law Dictionary (6th ed.) includes it. I had a chance to revisit that article in the last week and make some changes, such that the article now more thoroughly (and repeatedly) refutes the conflation. It's wonderful to see articles which don't do this! Dahlia Lithwick, take note!

Posted by: Simon | Nov 16, 2005 3:43:55 PM

I agree that Breyer's book will be more persuasive to the lay audience, but that is partially because he fails to confront some of the (I think compelling) counterarguments to his theory. I tend to think that that strategy of popular persuasion is not particularly laudable.

Posted by: Will Baude | Nov 16, 2005 12:17:31 AM

I believe that Active Liberty is addressed to the population of persons who are not constitutional theorists. The theoretical underpinnings of Active Liberty may (possibly) contribute new ideas, but in general they mostly derive from the work of Thayer, Ely, and others. J. Breyer does not attempt to flush out his theory as though it were to be subjected to rigorous academic scrutiny, but rather writes in broad strokes, addressing himself to those "sitting on the fence" but to whom originalism might appear to be an intuitive view of what law is, and to whom non-originalist judges might appear to be transgressing judicial boundaries. The example-explanation format works to provide explanation of caselaw in layman's terms (as seen by not, e.g., simply appending or excerpting the reasoning of the opinions themselves) of a theory behind his judging which is not originalist, and yet is still reasoned, constrained, and - most importantly - judicial. If J. Breyer intended to create an intellectual movement, Active Liberty may fail. If Active Liberty is intended to enter into conversation with the general public, J. Breyer has provided a courageous voice.

Posted by: Student | Nov 15, 2005 9:49:26 PM


Fine. Scalia's format is weird, and it would have been weird for Breyer to adopt it. Nonetheless, it's a good format for a book like this.

And the reason its good is because it patches up what is otherwise a large flaw in Breyer's book, and would have been a large flaw in Scalia's-- the absence of any serious engagement with the arguments on the other side. Now if Breyer could engage with the other side, that would be fine, but he didn't, so that's bad. So far, we're agreed.

My only point that appears to be in controversy is that there is something a little weird-- but not totally unheard of-- that he could have done to fix this problem if he wasn't able to muster the good objections on his own. So I think we're agreed on that too. Breyer's book has a flaw, a flaw that could have been fixed in one common way or one unusual way, and he didn't do either one.

[Finally, I note in the spirit of quarrelling that the argument, response from multiple authors, rejoinder format is very common in law reviews, a genre with which Breyer is quite familiar, so in addition to the precedent of Scalia's book it's not as if the thought of doing things that way shouldn't have occurred to him.]

Posted by: Will Baude | Nov 15, 2005 4:43:49 PM

I guess I don't think the source of Scalia's book is off point. Here's why- Scalia didn't pick the format or solicit the responses- Amy Gutmann did. Obviously Scalia agreed to it, and may have even had some input on the respondents, but I suspect that Gutmann did the work on that. That sort of book is in fact quite rare- the others in the series and a somewhat similar series run by Josh Cohen out of the Boston Review are the main ones in political theory doing it. Since it's not normal, and Scalia didn't design it or pick it or likely even pick the respondents, isn't it a bit weird to think that Breyer would do his book the same way as opposed to the normal way for doing a book? Again, none of this is to say that he should not have done a better job responding to potential objections. But that Scalia did so was due to a format set up by Gutmann, not Scalia.

Posted by: Matt | Nov 15, 2005 3:53:56 PM

I guess I don't understand why requesting substantive changes in format is "less reasonable" than requesting substantive changes in substance.

To be a good book, Breyer's book needed to do something it didn't do-- namely, confront serious objection to its theory. There are two ways Breyer could have done this-- by providing serious objection himself, or by inviting others to do it. I think the second route would have been better, but the two are substitutes here. The absence of either is the problem.

In any case, the source of the format of Scalia's book is surely off point. Breyer should have either copied that format, or done the job himself. He did neither.

Posted by: Will Baude | Nov 15, 2005 2:29:59 PM

Perhaps I wasn't totally clear. Assumedly Breyer could have done a better job of answering potential objections than he did while still using a normal book format. People do that all the time in well done books, afer all. I've not read his book nor do I expect to. I'm willing to take people at their word that it does a bad job of answering potential objections. But, it seems a less reasonable objection to say he should have used a different format than he did, especially since the different format was the product of Scalia being invited to take part in a semi-regular program of lectures at the Center for Human Values at Princeton that no longer takes place.

Posted by: Matt | Nov 15, 2005 1:30:47 PM

While it's perhaps reasonable to wish someone had written a different book than she or he did, that's in itself not a criticism of the actual book.

Oh, but it is! The criticism is that Breyer's book does a woeful job at confronting possible objections. If he were capable of setting up arguments that weren't straw men, he could have done it himself. But it looks like he isn't, perhaps because he finds those objections so unpersuasive that he can't lay them out seriously. Soliciting a counter-argument would have been a way to do that.

And given the way the book was and has been billed in some of the press as a response to Scalia's M.o.I, I think Breyer would have done well to copy M.o.I.'s very successful format.

This is a criticism of Breyer's book: It confronts counterarguments badly, and fails to do what it could have done and what similar books have done to confront them.

Posted by: Will Baude | Nov 15, 2005 10:27:53 AM

It's worth noting, of course, that Scalia's book was part of a series where the replies by other scholars was a standard part of the series (Books by Nussbaum, Taylor, and Thompson are also in the series) while Breyer's book is published from a comercial press. While I suppose he could have insisted on such a format if he wanted it's likely that this is the explination for such. While it's perhaps reasonable to wish someone had written a different book than she or he did, that's in itself not a criticism of the actual book. (I don't offer this as a criticism of Dan's post, just as an explination of the situation.)

Posted by: Matt | Nov 15, 2005 9:05:56 AM

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