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>> 7 1 Our Democratic Constitution Stephen Breyer The United States is a nation built on principles of human liberty—a liberty that embraces concepts of democracy. The French political philosopher Benjamin Constant understood the connection. He distinguished between liberty as practiced by the ancient Greeks and Romans and the “liberty” of the eighteenth- and nineteenth-century “moderns.”1 Writing thirty years after the French Revolution and not long after the adoption of our American Constitution, Constant said that the “liberty of the ancients” consisted of an “active and constant participation in collective power.”2 The ancient world, he added, believed that liberty consisted of “submitting to all the citizens, without exception, the care and assessment of their most sacred interests.”3 Liberty thereby “ennobles their thoughts, and establishes among them a kind of intellectual equality which forms the glory and power of a people.”4 Constant distinguished that “liberty of the ancients” from the more “modern liberty” consisting of “individual independence” from governmental restriction.5 Having seen the Terror, he argued that this “liberty of the moderns” was necessary to protect the individual from the excesses of democratic majorities and those acting in their name. But, he said, we must not renounce “either of the two sorts of freedom[;] . . . it is necessary . . . to learn to combine the two together.”6 This lecture was delivered on October 22, 2001, and appeared in 77 N.Y.U. L. Rev. 245 (2002). Justice Breyer expanded upon his lecture in Stephen Breyer, Active Liberty (2005). 8 > 9 meet at least once a year,13 that elections take place every two14 (or six)15 years, and that a census take place every decade;16 the Fifteenth,17 Nineteenth ,18 Twenty-fourth,19 and Twenty-sixth20 Amendments secure virtually universal adult suffrage. But a general constitutional objective such as self-government plays a constitutional role beyond the interpretation of an individual provision that refers to it directly. That is because constitutional courts must consider the relation of one provision to another. They must consider the document as a whole.21 And consequently, the document’s handful of general purposes will inform judicial interpretation of many clauses that do not refer directly to the general objective in question. My examples seek to show how that is so. And, as I have said, they will suggest a need for judges to pay greater attention to one of those general objectives, namely participatory democratic self-government. Second, the Court, while always respecting language, tradition, and precedent, nonetheless has emphasized different constitutional objectives at different periods in its history. Thus, one can characterize the early nineteenth century as a period during which the Court helped to establish the authority of the federal government, including the federal judiciary.22 During the late nineteenth and early twentieth centuries, the Court underemphasized the Constitution’s efforts to secure participation by African American citizens in representative government—efforts related to the participatory “active liberty” of the ancients.23 At the same time, it overemphasized protection of property rights, such as an individual ’s freedom to contract without government interference,24 to the point where President Franklin Roosevelt commented that the Court’s Lochner -era decisions had created a legal “no-man’s land” that neither state nor federal regulatory authority had the power to enter.25 The New Deal Court and the Warren Court emphasized “active liberty .” The former did so by dismantling various Lochner-era distinctions, thereby expanding the scope of democratic self-government.26 The latter did so by interpreting the Civil War Amendments in light of their purposes to mean what they say, thereby helping African Americans become members of the nation’s community of self-governing citizens—a community that the Court expanded further in its “one person, one vote” decisions.27 More recently, in my view, the Court has again underemphasized the importance of the citizen’s active liberty. I will argue for a contemporary emphasis that better combines “the liberty of the ancients” with that “freedom of governmental restraint” that Constant called “modern.” 10 > 11 to “correct” legislative error may deprive “the people” of “the political experience, and the moral education and stimulus that come from . . . correcting their own errors.”28 It encompasses that doubt, caution, prudence , and concern—that state of not being “too sure” of oneself—that Learned Hand described as the “spirit of liberty.”29 In a word, it argues for traditional “judicial restraint.” But active liberty argues for more than that. I shall suggest...

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