Wednesday, August 23, 2006

Breyer: Active citizens make democracy work

Supreme Court justice promotes new book in Sun Valley


By REBECCA MEANY
Express Staff Writer

U.S. Supreme Court Justice Stephen Breyer signs copies of his new book at the Sun Valley Writers' Conference. Photo by Barbi Reed, courtesy Sun Valley Writers' Conference

A serene expression accompanied U.S. Supreme Court Justice Stephen Breyer as he made his way through the Sun Valley Lodge Saturday.

As a first-time visitor to the area, the associate justice was taken in by the natural beauty surrounding him.

A bike ride along the Wood River Trails and a hike to Baker Lake—with his wife, daughter, her husband and two youngsters in tow—afforded him mental rest and physical relaxation.

"It's unbelievably beautiful," he said of the area.

But the halcyon environment wasn't the sole cause for contentment in the man who has been sitting on the nation's highest court since 1994.

Breyer is an optimist. And it's this attitude that has allowed him to prosper in a political system where many benefit but far fewer participate.

Breyer spoke to hundreds Friday, Aug. 18, at the Sun Valley Writers' Conference, then sat down with the Idaho Mountain Express Saturday to discuss his latest book, "Active Liberty—Interpreting our Democratic Constitution."

"There's always a gloomy side and an optimistic side," he said. "I usually emphasize the optimistic side. Things are better than most people think."

"Take a controversial issue, like the Patriot Act," he said. "When I hear everyone shouting at each other about it, I say, 'Good.'"

It's that participation, that engagement, that means the system is working.

When French political thinker Alexis de Tocqueville came to the U.S. in 1840, the first thing he noticed was clamor—everyone shouting at each other, Breyer said.

"Rude debate is better than no debate," he said. "Of course, it would be better were there more debate, but the debate that takes place is a very good sign—it shouldn't be underrated."

Besides advocating in his book for an active citizenry, Breyer explains how he approaches his job.

Justices' positions involve the Constitution as a "steady diet," he said, which gives them insight into the document in a way few others obtain.

"Although we do statutory work, too," he said, "day after day after day we do constitutional work. Any judge (who does that) will inevitably begin to see that document as a whole."

What is it about? How do the components fit together into a coherent framework?

The Constitution creates a set of institutions that enable people to govern themselves, he said, and it prevents any small group of people from becoming too powerful.

The court doesn't decide whether something is good or bad policy, he said, "but whether it's within the boundaries (of the Constitution)."

When dealing with statutory questions, there are a certain number of tools a justice has to try to interpret a law, he said: Read the text, see what the language says, look to the history, tradition, precedence, values and purpose.

"Some judges don't look to the last two very often," he said.

Those justices are often called "textualists" because they focus on the words themselves to find meaning.

Breyer, on the other hand, looks to values, purposes and consequences of what he's evaluating, after contemplating language, structure and history.

Relying too much on linguistic interpretation can undermine the Constitution's democratic objective, he says in "Active Liberty."

"Legislation in a delegated democracy is meant to embody the people's will," he writes.

Interpreting the lawmaker's will, then, help implement the public will and "is therefore consistent with the Constitution's democratic purpose."

Despite his belief in the system, and a call for everyone to participate in their government for maximum results, Breyer admits a cause for concern.

"What do we teach about the Constitution to high school students?" he said. "When more know the names of the Three Stooges than (can name) three Supreme Court justices, I say, 'Good.' When I hear more know the Three Stooges than know the three branches of government, I get a little scared."

One of Breyer's reasons for writing "Active Liberty" was to engage that younger audience.

His book discusses his philosophy on interpreting the Constitution and his argument for a more participatory democracy.

"All of us on the Court think it's terribly important to teach how government works ... so they'll participate," he said. "If you don't choose to participate, if you don't choose to look beyond yourself ... this document won't work."

That participation takes on added significance when people take advantage of the system but do nothing to actively support it.

"When government is doing something stupid, convince them not to," he said. "That's our right. Go and convince others, or go and be convinced (yourself)."

The smiling justice isn't disheartened when voter counts are low and attitudes about participatory democracy fall on apathetic ears.

"I don't get frustrated," he said. "I just try to convince them."




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