Constitutional constraints on federal government powers

Beware Adjectives Attached to Treasured Nouns:

Intellectual attacks on treasured political values often take the form of an exercise in semantics. An adjective is attached to the pertinent descriptive noun that has the effect of modifying the noun, often to the degree of turning the described value on its head. This game has been played by both Democratic and Republican party intellectual partisans and is also common among political partisans of foreign nations.

"Compassionate" conservatism, for example, was used by the Bush (II) administration to justify the most destructive attack on conservative fiscal and financial values since the administration of Lyndon Johnson, obliterating conservative budgetary constraints and credit standards.
"People's" republic is used by socialist despotisms to justify the destruction of the political liberties commonly enjoyed under republics.
"Living" Constitution is used to justify changing the Constitution by judicial fiat without the inconvenience of complying with the amendment process prescribed by the Constitution. "Living" Constitution provisions thus become about as binding and changeable as those typical of many Latin American constitutions.

Democratic active liberty:

The effort to destroy the constitutional constraints that inhibit the ability to enact political domestic agenda objectives at the federal level is currently being led by Supreme Court Justice Stephen Breyer. An end to what remains of the Article I federalism constraints on Congressional powers is one of the primary political objectives of the judicial opinions and recent literary works of Justice Breyer.
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Breyer explains his approval of federal government domestic programs that may be accompanied by mandates restricting liberty values at state and local levels and that may dictate the duties of both the peoples and their state and local governments.

The phrase is used to justify ever-broader application of Interstate Commerce Clause powers until there is practically nothing left of state government autonomy on domestic economic and social matters.

By pushing aside constitutional constraints, federal government political leaders can apply domestic agenda items nationwide - immediately - without the inconvenience of fighting the battle state-by-state and accommodating the various interests that may enjoy political power in individual states.

By attaching the adjective "active" to the noun "liberty" in characterizing those federal actions that should be permitted to escape constitutional constraints on the federal government's domestic authority, Breyer clearly hopes to facilitate the substantial enlargement of the federal government's roles in the nation's domestic affairs.
By attaching the adjective "democratic" to the nouns "liberty," and "purposes," Breyer explains his approval of federal government domestic programs that may be accompanied by mandates displacing liberty values at state and local levels and that may dictate the duties of both the peoples and their state and local governments. Incompatible democratic purposes of the people at state and local levels can be brushed aside..
By attaching the adjective "modern" to the noun "liberty," Breyer supports achievement of "democratic" purposes at the federal level, casually pushing aside any "archaic" incompatible constitutional constraints that protect the democratic purposes of the people at state and local levels.
By attaching the adjective "cooperative" to the noun "federalism," Breyer supports destruction of practically all remaining meaning in the constitutional provisions that reserve powers for the states. The phrase is used to justify ever-broader application of Interstate Commerce Clause powers until there is practically nothing left of state government autonomy on domestic economic and social matters. This is the cooperation of the lamb in consenting to be eaten by the lion.

What a blessing for federal political leaders. By means of unfunded or under-funded mandates, they can impose their policy will with little or no increase in the federal budget or federal taxes. Contentious policies can be readily spread nationally without the inconvenience of fighting the battle state-by-state and without inconvenient comparison with any possibly superior state policy approaches. Among many other things, what is lost is the benefits of testing different policy approaches in different states.
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Breyer argues reasonably that democratic governments must be free to make mistakes, but only the federal government makes its mistakes from sea to shining sea.

In "Active Liberty: Interpreting Our Democratic Constitution," Breyer launches a broad semantics attack on constitutional constraints on the federal government's domestic powers. He emphasizes the "liberty" interest of the public in taking part in governance, constrained by little more than protections for minority interests against a tyranny of the majority such as arose during the French Revolution.
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Attaching the adjective "modern" to the noun "liberty," Breyer describes this degree of liberty as "the true modern liberty." It permits judges to interpret constitutional and legal text so that it "helps a community of individuals find practical solutions to important contemporary social problems."
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Breyer asserts that the majority should have its way at the federal level with respect to government efforts to deal with social problems. The federal government should be able to order state and local governments to comply with social legislation and should be empowered to enlist officials at the state and local government level as agents to work on federal government policies.
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Supreme Court decisions "that abolished legal segregation, that gave life to the Constitution's liberty-protecting promises, that helped to make 'We the People' a phrase that finally includes those whom the Constitution originally and intentionally ignored" demonstrates the active liberty principle in action.

Constitutional language should be read "as the revelation of the great purposes which were intended to be achieved by the Constitution." That constraints on the domestic powers of the federal government was one of these "great purposes" is casually set aside in favor of permitting "democratic values" to express themselves in federal domestic legislation.
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Interpretation is to be guided by the general "purposes" of the Constitution rather than just the language of any pertinent provision, Breyer emphasizes. "Judicial restraint" - "judicial democratic attitudes" - favor support for democratically enacted legislation.
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Supreme Court decisions "that abolished legal segregation, that gave life to the Constitution's liberty-protecting promises, that helped to make 'We the People' a phrase that finally includes those whom the Constitution originally and intentionally ignored" demonstrates the active liberty principle in action. These decisions furthered the higher purposes of the Constitution despite original constraints. The shift away from contract rights to favor child labor law provisions and wage and hour labor law provisions provide other pertinent examples of how a changing view of constitutional purposes can change the interpretation of constitutional provisions and limit the impact of constitutional constraints.
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The "Active Liberty" principle is elevated by Breyer to primacy as a guide to constitutional interpretation.

"Is it reasonable from a historical perspective to view the Constitution as centrally focused upon active liberty, upon the right of individuals to participate in democratic self-government? I believe so."

Active liberty, "the principle of participatory self-government," was certainly "a primary force shaping the system of government that the document creates."
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Breyer acknowledges that one of these safeguards was "delegation to the federal government of limited powers, which diffused power and prevented impetuous action by the central government." The constitutional safeguards, however, were not viewed as a repudiation of either the Revolution or popular government, but just as a method to save both "from their excesses."

The complexity of the political system formed was not for the purpose of limiting "delegated democracy" but to make it "practically workable" and to protect individuals from oppression by preventing domination by any single group. It was designed to escape the "self-destructive public policies" all too often found in more straight-forward democratic systems. It provided protection against the excesses of "faction" by, among other things, "broadening the electoral base," "enlarging the electorate," so that representatives would have to accommodate a variety of interests. Checks and balances of divided authority and the Bill of Rights provided additional safeguards, enhanced by an independent judiciary.
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However, Breyer here acknowledges that one of these safeguards was "delegation to the federal government of limited powers, which diffused power and prevented impetuous action by the central government." The constitutional safeguards, however, were not viewed as a repudiation of either the Revolution or popular government, but just as a method to save both "from their excesses." The democratic ratification procedure for the document was an acknowledgement of its "democratic character."
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"Judicial restraint" should be focused narrowly to generally avoid application of constitutional constraints on the legislation enacted by the democratically elected federal legislature.

Breyer views the Constitution's primary purposes as "the furthering of active liberty," with structural safeguards "responding to practical needs for delegation," "for protection of basic individual freedoms," and favoring "nondestructive - and hopefully sound - public policies." "Judicial restraint" should be focused narrowly to generally avoid application of constitutional constraints on the legislation enacted by the democratically elected federal legislature.

Breyer's thesis avoids the question of whether particular domestic policy activities should be the province of state and local governments - the governments closest to the people - rather than the distant and much more unresponsive - federal government. He here excludes the obvious powerful intent of both the constitutional convention and ratifying states of preserving state dominance over domestic affairs outside the enumerated powers granted to the federal government.
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The Constitution itself reflects a clear intent to restrict the federal government to enumerated powers and the supplementary powers necessary for their implementation. At the Convention, the broad, general language of the Virginia Plan was replaced by a specific list of congressional powers - enumerated powers - that included taxation, foreign and interstate commerce, war, and money. The list was long, but its very nature maintained the concept of the Union government as one of limited powers. There is no indication that supplementary powers were to be so broadly interpreted as to obliterate the constraint.
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Applying the adjective "active" does not in any way resolve the question of at which level of government the activity should be pursued. "Living" Constitution arguments have been used to resolve this question in favor of federal government powers.
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During the two centuries of capitalist history, states and nations all around the world have repeatedly driven themselves towards insolvency and into disastrous experiments with socialism and the political manipulation of markets. The dangers have never been more evident than today. In the absence of suitable constraints on its "active liberty" and "democratic purposes." the federal government has never before posed a greater threat to the financial stability and economic strength of the nation.
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It is predominantly federal government policies that gave the nation the Great Depression of the 1930s, the Keynesian inflationary morass of the 1970s, and the boom and bust economy so far during the 21st century. "Modern liberty" and "democratic purposes" need constitutional constraint more than ever.

The Constitution's "democratic" nature and objectives simply outweigh its evident concerns for state autonomy on domestic matters and constraints on federal government domestic powers.

To a large extent, Breyer seeks by judicial interpretation to reduce the Constitution to legal protection for individuals and minorities and a framework for governance with little more than a few express limitations on the powers of "democratic" governance at the federal level. The Constitution's "democratic" nature and objectives simply outweigh its evident concerns for state autonomy on domestic matters and constraints on federal government domestic powers. He emphasizes that this has in fact been the dominant trend in Supreme Court decisions for more than a century.

"Judges can explain in terms the public can understand just what the Constitution is all about. They can make clear, above all, that the Constitution is not a document designed to solve the problems of a community at any level -- local, state, or national. Rather it is a document that will help them do so. That framework foresees democratically determined solutions, protective of the individual's basic liberties. It assures each individual that the law will treat him or her with equal respect. It seeks to form a democratic government that will prove workable over time."

Breyer's view needs only one more liberal appointee to the Court to solidify the tendency for the federal government to concentrate power in Washington over domestic affairs. It ignores those aspects of the framework of the Constitution that favor state and local governance for all but enumerated aspects of domestic policy.

"By guaranteeing state and local governments broad decision-making authority, federalist principles secure decisions that rest on knowledge of local circumstances, help to develop a sense of shared purposes and commitments among local citizens, and ultimately facilitate 'novel social and economic experiments."

Breyer is well aware of the benefits of federalism as a system that reserves extensive power over domestic matters to the states.

"By guaranteeing state and local governments broad decision-making authority, federalist principles secure decisions that rest on knowledge of local circumstances, help to develop a sense of shared purposes and commitments among local citizens, and ultimately facilitate novel social and economic experiments. Through increased transparency, those principles make it easier for citizens to hold government officials accountable. And by bringing government closer to home, they help maintain a sense of local community. In all these ways they facilitate and encourage the ancient liberty that [political philosopher Benjamin] Constant described: citizen participation in the government's decision-making process."

Why shouldn't the people's representatives at the federal level have the power to dominate domestic policy through the federal government's spending and tax powers?

Federal regulatory convenience thus becomes a principle of constitutional interpretation outweighing constitutional constraints on federal powers. The federalism constraint on federal government powers should always be open to future modification based on the practical inconvenience for the democratic policy-making of the federal government.

Breyer easily demonstrates how just about everything citizens do locally can be viewed in the aggregate as "affecting" interstate commerce.

By attaching the adjective "cooperative" to "federalism," however, Breyer justifies pushing the federal camel's nose further into the tent of state jurisdiction. Emphasis on "active" liberty and the "democratic" purposes of Congressional legislation inevitably results in a jurisdictional tent full of federal camel that pushes state jurisdiction aside.

A variety of domestic policies properly dealt with in part at least at the federal level are mentioned by Breyer. (However, these examples - regulation of toxic chemicals and traffic in nuclear waste and guns, for example - all clearly fall within the Constitution's Interstate Commerce Clause.)
Incentives created by subsidies and narrowly crafted taxes are mechanisms Breyer approves of for federal intrusion on local jurisdiction. Why shouldn't the people's representatives at the federal level have the power to dominate domestic policy through the federal government's spending and tax powers? (Such "incentives" can easily reach punishing levels for non-responsive states.)
The Supreme Court's decision constraining the ability of the federal government to enlist state officials as agents to achieve federal purposes is criticized by Breyer. This constraint imposes the regulatory burden for federal policies entirely on the federal government and extends federal regulation activities and agents broadly throughout the nation. Breyer rationalizes irrationally that if state and local officials could just be required to do the work it would amount to a reduction in federal regulation that conservatives should applaud. (Gee! Thanks for nothing!)
The benefits possible under "cooperative" federalism as he defines it are emphasized by Breyer. Federal regulatory convenience thus becomes a principle of constitutional interpretation outweighing constitutional constraints on federal powers. The federalism constraint on federal government powers should always be open to future modification based on the practical inconvenience for the democratic policy-making of the federal government.
That the federal government can't require states to waive their constitutional powers, such as their Eleventh Amendment immunity from suit, is also criticized by Breyer.
The activities that "affect" interstate commerce is viewed broadly enough by Breyer to allow the federal government's interstate commerce power to expand sufficiently to nullify almost all federalism constraints on the federal government's economic regulatory powers. He easily demonstrates how just about everything citizens do locally can be viewed in the aggregate as "affecting" interstate commerce.

This has in fact until recently been the view of the Supreme Court. A farmer growing wheat solely to feed to his own cattle on his own ranch sufficiently "affects" interstate commerce to warrant federal regulation.

The "legislative purposes" standard carries the danger that it may be the purposes favored by the judge rather than the legislators that will be applied, but such subjective views will be broadly established only if the ruling is accepted by many other judges and survives appellate review.

That courts already use legislative intent - "democratic purposes" - as an interpretive technique whenever statutory language is unclear concerning meaning or application is acknowledged by Breyer. The dividing line lies between those who emphasize textual context and linguistic interpretive aids and those who depend on interpretation based on perceived legislative purposes. He explains convincingly why legislative purposes should predominate over statutory text if there can be found substantial doubt over the application of the text.
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The "legislative purposes" standard carries the danger that it may be the purposes favored by the judge rather than the legislators that will be applied, but such subjective views will be broadly established only if the ruling is accepted by many other judges and survives appellate review. In Breyer's view, the Constitution's "democratic goals" thus submerge its obvious goal of constraining the "democratic goals" that can be the subject of federal rather than state action.

In today's highly partisan political atmosphere, Congress and state legislatures frequently purposely leave statutory provisions vague just to get the legislation passed. The hope is that the judiciary, on a case-by-case basis, can suitably flesh out the legislation. This combined legislated and judge-made law costs much time and money, and risks leaving the public uncertain about what is legally required, but can over time be quite effective. This is in fact the normal course of legislation because of the limits imposed by the inherent ambiguity of language and the uncertainties of future application. Administrative agency interpretation, too, is used to achieve statutory objectives, especially when those objectives require expertise beyond that available to Congress.

Breyer provides examples of how his principles of active liberty and democratic purposes should be used. Contemporary issues with campaign finance, environmental regulation, the impacts of technology on privacy, affirmative action, and the powers of the administrative arm of government are covered.
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Breyer provides examples of how his interpretive approach would operate with respect to education vouchers for parents who want to send their children to religious schools - a practice that, Breyer points out, raises divisiveness issues that the Establishment Clause was designed to avoid - and with respect to displays of the Ten Commandments - a practice that he believes can be acceptable if not in a predominantly religious context.
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"The 'textualist,' 'originalist,' and 'literalist' approaches themselves possess inherently subjective elements. Which linguistic characteristics are determinative? Which canons shall we choose? Which historical account shall we use? Which tradition shall we apply? And how does that history, or that tradition, apply now?"

Other standards of constitutional interpretation such as the "literalist" or "textualist" or "originalist" approaches do not always provide determinative solutions, Breyer correctly points out. "Values" and "proportionality" are two additional standards that should be employed when interpreting provisions that deal with basic individual rights.

"Why do I point out the uncertainties, in close cases, of linguistic structure, of canons of interpretation, and of history? Because those difficulties mean that the 'textualist,' 'originalist,' and 'literalist' approaches themselves possess inherently subjective elements. Which linguistic characteristics are determinative? Which canons shall we choose? Which historical account shall we use? Which tradition shall we apply? And how does that history, or that tradition, apply now?
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"Significantly, an effort to answer these questions can produce a decision that is not only subjective but also unclear, lacking transparency about the factors that the judge considers truly significant. A decision that directly addresses consequences, purposes, and values is no more subjective, at worst, and has the added value of exposing underlying judicial motivations, specifying the points of doubt for all to read. This is particularly important because transparency of rationale permits informed public criticism of opinion; and that criticism, in a democracy, plays an important role in checking abuse of judicial power." (emphasis Breyer)

Modern contentious cases that do not fit easily in established rules of law or cannot be easily resolved by standard interpretive principles - and where application of these rules and standards produces harmful results - are referred to by Breyer. He points out that a 5-4 split in the Supreme Court occurs in only about 20% of its decisions, and only a few of these reflect the predominant 5-4 philosophical split in the Court. (Those few 5-4 decisions are frequently the outcome in cases fraught with the broadest implications.)

Breyer here overstates his case. The law has never been that rigid. It has developed and grown over the centuries flexibly by adapting to new circumstances. It is, for example, a basic interpretive principle that the reasons behind rules of law and interpretive principles themselves must be considered. "Where reason ends, the law ends," is a basic standard for determining the boundaries for application of legal rules. Cases frequently reach the Supreme Court precisely because they reside at such boundaries, requiring close examination of the reasons behind alternative rules or even the need for new rules.
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The Commerce Clause is actually not about particular policies. It is a part of the constitutional framework, like the Articles establishing the constitutional arms of the federal government. Commerce Clause constraints do not impose a constitutional block on policy. They just sometimes inconveniently require that certain domestic policies be pursued at the state level. They are thus just like other parts of the constitutional framework that empower all the arms of the government to play there intended roles.
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Can the President dispense with Congress and/or the courts when they get in the way of his undoubtedly laudable objectives? The Obama administration today would certainly like nothing better.
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There is no arguable case for ignoring the constitutional constraints on federal government domestic policy. These constraints are clearly supported in the text of the Constitution and the records of the Constitutional Convention and state ratifying proceedings. That this view was not unanimous is obvious, so Breyer has little difficulty in cherry picking some divergent views, but the historic record is overwhelmingly against him. The Civil War Amendments modified these constraints for particular purposes, but there is no evidence that they were intended as a general surrender of state authority. Nor has the need for constitutional constraints on federal powers ever been greater.

The public now assumes "that it should peacefully follow an important controversial decision," Breyer remarks hopefully.

The declining public regard for the Court in recent years threatens this essential development. Breyer recognizes that 'the public trust cannot be taken for granted."

The changing public perceptions of the Court and its decisions during two centuries of ruling on sometimes highly charged issues are reviewed by Breyer. Some 19th century cases, including the Cherokee rights case and the Dred Scott case, failed to generate acceptance and were not implemented. A century later, implementation of the desegregation ruling in Brown v. Board of Education still experienced major difficulties.
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However, Bush v. Gore at the beginning of the 21st century was calmly accepted. The public now assumes "that it should peacefully follow an important controversial decision," Breyer remarks hopefully.

"America's public officials and the American public have come to accept as legitimate not only the Court's decisions but also its interpretations of the Constitution. The public has developed a habit of following the Court's constitutional interpretations, even those with which it strongly disagrees. Today we find it as normal to respect the Court's decisions as to breathe the air around us."

However, the declining public regard for the Court in recent years threatens this essential development. Breyer recognizes that "the public trust cannot be taken for granted."
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The Court should "reject approaches to interpreting the Constitution that consider the document's scope and application as fixed at the moment of framing." The complex problems of our modern globalized life should not be resolved "solely to the facts and circumstances of eighteenth century society."

A basic question for Breyer is thus "how the Court can earn the public's confidence by developing relationships with other institutions that will help government work well."

Unfortunately, this question does not speak to jurisdictional problems concerning which government entity - executive, legislative, judicial, administrative, at federal or state level - has predominant jurisdiction over pertinent issues. It also raises the question of how the Court can "earn the public's confidence" when the public is split in half, with the views of one half predominant in the executive branch and the other half predominant in the Congress, and with similar division among the states? Under the constitutional framework, all the branches of government, including the states, are assigned roles that the Court is expected to respect, although it is clearly Congress that is intended to establish policy for the federal government.

The traditional tools of constitutional and statutory interpretation - text, history, tradition, precedent, and purposes and consequences, are all of course accepted by Breyer as of continuing importance. However, purposes and consequences are what he emphasizes most "to properly interpret an ambiguous text" or when "faced with open-ended language."
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The law must "work better for those whom it affects." The law must "work well for the people of today." The Court should "reject approaches to interpreting the Constitution that consider the document's scope and application as fixed at the moment of framing." The complex problems of our modern globalized life should not be resolved "solely to the facts and circumstances of eighteenth century society."
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In Brown v. Board of Education in 1954, the Court found an answer not in the "particular historic beliefs but in the values that underlie the Equal Protection clause." The values of the clause applied "to the circumstances of segregation as they existed in 1954."

Interpretation should be based on the perceived "unwavering values" that "must be applied flexibly to overcome ever-changing circumstances."

"The Court must consider not just how eighteenth-century Americans used a particular phrase but also how the values underlying that phrase apply today to circumstances perhaps then unconceivable."

Critically, what does the word "commerce" mean in the grant of power to "regulate commerce - - - among the several states?"

"[In] all likelihood the framers intended the scope of that word to expand, covering more and more items, as commerce itself expands, as technology advances, and as commercial activities in one state increasingly affect those in another."

Should the existence of segregated schools in the North in the 1860s when the 14th Amendment was adopted have foreclosed the decision against them in Brown v. Board of Education in 1954? Instead, the Court found an answer to that particular question not in the "particular historic beliefs but in the values that underlie the Equal Protection clause." The values of the clause applied "to the circumstances of segregation as they existed in 1954."
Is "flogging" in the Navy today "cruel and unusual punishment" if it was acceptable in the 19th century?

"[Why] would people want to live under the 'dead hand' of an eighteenth-century constitution that preserved not enduring values but specific eighteenth-century thoughts about how those values then applied?"

Judges must "seek an interpretation that helps the textual provision work well now to achieve its basic statutory or constitutional objectives."

Breyer recognizes the Court's duty "to ensure that governmental institutions abide by the constitutional constraints on their power."

Breyer concedes that purpose and consequences are used by all judges - but he emphasizes them as "particularly useful tools."

However, caution is needed when thus amending the Constitution by judicial decision, Breyer acknowledges. Decisions must not simply reflect "short-term popularity" lest, among other reasons, the law lose needed stability. The "subjective preferences" of judges are similarly inadequate guides since they threaten the needed stability of the law. Judges must "seek an interpretation that helps the textual provision work well now to achieve its basic statutory or constitutional objectives."
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Breyer recognizes the Court's duty "to ensure that governmental institutions abide by the constitutional constraints on their power." The complexity of the task is demonstrated by Breyer with several examples - including state efforts to impose term limits on congressional and on state representatives.
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Breyer concedes that purpose and consequences are used by all judges - but he emphasizes them as "particularly useful tools." He sums up his explanation of how he approaches statutory interpretation.

"Ordinarily, cases that reach the Supreme Court involve ambiguous statutory language. When judges interpret that language, they look to the words at issue, to surrounding text, to precedent, to the statute's history, to legal traditions, to the statute's purposes, and to its consequences evaluated in light of those purposes. Of these I find the last two - purposes and consequences - most helpful most often. I believe maintaining a strong workable relationship with Congress requires the Court to use these two tools to help unlock the meaning of statutory text. A strong relationship, in turn, helps the nation's institutions, and the law, to function well."

When is text precise enough to be considered clear on a particular issue? In searching for intended purpose, are intended limits on scope of purpose to be given lesser consideration? How do courts sort out the jumble of Congressional views on purpose and scope frequently involved in the legislative process? Are limitations on scope to be ignored if their consequences render legislation less effective?
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Breyer's approach certainly does not make the Court's interpretive chores any easier. The ambiguity frequently afflicting the legislative process leaves courts as well as the administration and its administrative agencies with vast discretion in legal interpretation.

Interpreting the Commerce Clause:

The ambiguity inherent in language is, of course, recognized by Breyer. He emphasizes the importance of context and legislative history in interpreting the intent of ambiguities in statutory language, but he is prepared to ignore the context and history of the Commerce Clause.
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Breyer glorifies the purpose of Commerce clause powers but denigrates the purposes of including it among the list of constrained enumerated powers.

The importance of purpose is emphasized as a predominant factor in interpretation. However, Breyer glorifies the purpose of Commerce Clause powers but denigrates the purposes of including it among the list of constrained enumerated powers.

It is an exercise in cherry-picking the purposes Breyer favors while considering as archaic the inconvenient "eighteenth century" purposes in the constitutional framework that clearly favor a broad state role.
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Breyer presents a conflict that doesn't exist. He contrasts a "text-oriented" interpretive approach with his favored "purpose-oriented" approach - but he recognizes that purposes and their scope are themselves generally not without substantial ambiguity. Text, context, history are inevitably essential if purposes are not to be considered open-ended grants of federal executive branch power.

Judicial restraint:

The Constitution's federalism principles are reduced by Breyer to an issue of efficiency. Breyer is willing to search worldwide for political practices that can be used at his discretion for legal interpretation.
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Breyer is willing to search worldwide for political practices that can be used at his discretion for legal interpretation.

Breyer reads modern European "subsidiarity principles" into the Constitution's federalism provisions although it is a concept completely foreign to the document and to federalism under the Constitution

"Subsidiarity" practice in the European Union as interpreted by the European Court of Justice is drawn on by Breyer to bolster his views. He tells us that in Europe, jurisdiction over policy is often determined according to the level of government that can most efficiently execute it. He reads modern European "subsidiarity principles" into the Constitution's federalism provisions although it is a concept completely foreign to the document and to federalism under the Constitution.
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The Court should "work cooperatively with both legislative and executive branches of government taking advantage of their expertise in giving concrete meaning to federalism's subsidiarity principles," Breyer advises.

However, there are obvious differences between the federal union under the Constitution and the EU treaty union of European sovereign states, that Breyer does not here deign to comment upon. He does acknowledge, however, that in Europe, individual rights and freedoms are bestowed from above - from government - while in the U.S. individual rights and freedoms are inherent in the people who for practical reasons grant powers to government.

The Court should defer to the judgment of Congress on this issue. It is Congress, not the courts, that should determine whether there are constitutional constraints on the power of Congress. The same can be said for the President.

"Judicial restraint" is thus changed from deference to precedent and constitutional and legislative intent to deference for the actions and beliefs of the other arms of the federal government. He enquires as to which level of government can most efficiently execute a policy.
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Moreover, this is a question he believes that legislators are better equipped to answer than judges. In this, he is undoubtedly correct. Thus, the Court should defer to the judgment of Congress on this issue. It is Congress, not the courts, that should determine whether there are constitutional constraints on the power of Congress. The same can be said for the President.
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This is Breyer's definition of "judicial restraint." It is in some conflict with Breyer's repeated expressions of approval for "Hamilton's thesis that the Court is the best repository of the power to interpret the Constitution."
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Despite not being elected and not being a part of the constitutional architecture, Breyer would accord administrative agencies considerable power to define - and redefine - their own statutory authority.

The deference principle extends even to administrative agencies. Despite not being elected and not being a part of the constitutional architecture, Breyer would accord them considerable power to define - and redefine - their own statutory authority.

This is an activity Obama administration agencies have been vigorously engaged in. Indeed, the administrative state under the Obama administration is no longer just a policy implementing arm of government. It has been candidly used to bypass Congress to become the Obama administration's policy making arm, often acting in blatant disregard of the limited scope of statutory authorization and the desires of the elected congressional representatives of the people.
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Does this offend Breyer's view of "democratic" active liberty and "democratic" purposes? Probably not! Judged by the frequency with which Obama administrative agencies have been reversed by the courts, the Obama administration may be the most lawless administration on record. This sorry record should be enough to undermine Breyer's deference approach and instill a healthy skepticism so the courts can fulfill their obligation to protect the Constitution.

The states are no longer to be considered a part of the essential checks and balances employed by the Constitution to inhibit the abuse of federal governmental powers. According to Breyer's interpretive approach, the Commerce Clause should be stood on its head to read as empowering the federal government to regulate all commerce - international, interstate and domestic - as well as to use its regulatory powers as a potent social engineering tool.

A Court that periodically flips on contentious issues of constitutional interpretation is not going to retain the high level of public respect.

The Constitution was designed - with good reason that remains applicable today - to impose difficulties on the exercise of the extraordinary powers of government. Extensive and lengthy debate over contentious issues is exactly what the Constitution rightly requires. Extensive compromise and accommodation is suitably required for contentious legislation.
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Constitutional constraints imposed on the federal government's powers to regulate commerce disappear as a separate consideration - denigrated as a mere archaic 18th century sensibility, according to Breyer. The Commerce Clause expands to eclipse the intent evident in Article I to limit the federal government to enumerated powers. The states are no longer to be considered a part of the essential checks and balances employed by the Constitution to inhibit the abuse of federal governmental powers. According to Breyer's interpretive approach, the Commerce Clause should be stood on its head to read as empowering the federal government to regulate all commerce - international, interstate and domestic - as well as to use its regulatory powers as a potent social engineering tool.
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Of course, conservatives, too, can develop a semantics for Constitutional interpretation. When all else fails, a contentious decision can always be rationalized by reference to the "penumbra" or "emanations" from the Constitution, as liberal justices have already notoriously done.
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An increasingly politicized Court is the obvious result. A Court that periodically flips on contentious issues of constitutional interpretation is not going to retain the high level of public respect that is essential if the Court is to effectively fulfill its role as the ultimate authority on the interpretation of the Constitution and statutory law.

As governments, including those of the United States, repeatedly prove their inherent ineptness at economic management, activist governance is currently crumbling or retreating all over Latin America as well as in France, Southern Europe and the BRICS.

The eighteenth century Constitution of the United States as amended has proven itself far superior to that of any modern counterpart. It deserves respect - and the earnest protection of the Supreme Court - even in modern times.
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James Madison's work stood in the way of the disastrous socialist enthusiasms of the 20th century and today still poses difficulties for socialist and other market manipulation enthusiasms. As governments, including those of the United States, repeatedly prove their inherent ineptness at economic management, activist governance is currently crumbling or retreating all over Latin America as well as in France, Southern Europe and the BRICS.
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Madison must be denigrated as archaic to move him and his brethren out of the way of left wing plans. Breyer is a brilliant jurist, but he is no substitute for Madison and company.

Semantics games	"Active Liberty"	Extending federal primacy
"Making Our Democracy Work"	Tools of judicial interpretation	Judicial deference
Federalism defined down		The administrative state