A LiveJournaling friend sent me an icon with the note, "I think this definition of the English language correlates pretty well with your theory that white people invade other countries to find better things to eat."

UPDATE: Speaking of the English (language), here is a wonderful example of what the Brits call a chav. Though if pulling one's hair back in a ponytail or bun is characteristic of a female chav, I'll have to think of some other practical way to deal with mine the next time I'm in the UK.

O! fair Cedaria, hide those eyes
That hearts enough have won;
For whosoever sees them dies,
And cannot ruin shun.

Such beauty and charms are seen
United in your face,
The proudest can't but own you queen
Of beauty, wit and grace.

Then pity me, who am your slave,
And grant me a reprieve;
Unless I may your favor have,
I can't one moment live.

First things first-- a note on semantics. Justice Stephen Breyer's Active Liberty, recently published to all the usual accolades, might mislead you with the title. The "Active Liberty" is not liberty in the modern sense but is rather the "liberty" to use state violence to force other people to do one's bidding-- that is, the right to govern. So far as word-usage goes, I have no objection to this-- "liberty" is generally understood at a high enough level of abstraction that it does only rhetorical work, but I thought I should make it clear.

So, Breyer's project is to show how legal texts (largely federal statutes and the federal constitution) can and should be viewed through the lens of "active liberty". This means, I think, remembering that people like to make laws, that the framers were lawmakers, that laws and governance can be good, and so on. The trouble with this, at this level of generality, is that it is such a vague directive that it's unclear what work it does. Breyer is pretty frank about this, and luckily he is quite willing to get down to cases. More on those in a minute.

First, a few more larger thoughts. Breyer's book has been billed as a response to Justice Scalia's A Matter of Interpretation. Unlike AMoI, however, Active Liberty does not include a section where sharp-witted and ideologically diverse scholars take shots at the book, or a reply to those shots. The closest thing is a counter-argument about the consequentialist values of originalism that Breyer erects and then shoots down (or at least fights to a draw). This is unfortunate. Breyer is very smart, so letting him fight gladiators not of his own making probably would have made his arguments work better.

Now, as I said, the trouble with simply interpreting the Constitution as generally promoting the end of Active Liberty (i.e., governance) is that the Constitution clearly pursued multiple ends, was approved by different people with different opinions of the proper balance between law, license, and liberty, and so on. So it is hard to know whether to object to the general program until it plays out.

Breyer plays it out across several areas, and I offer some objections.

1: Federalism. The catchphrase for Breyer here is "cooperative federalism." Sovereign immunity and the anti-commandeering doctrine are bad for federalism because they make it harder for the federal government to enact flexible national regulatory programs. Breyer concedes some benefits of decentralization, and sugggests that some of these decisions will have perverse effects. Indeed they may.

But why suppose that "our federalism" is supposed to be a cooperative one? Why not a non-cooperative federalism? We know that part of the genius of our structure of separated governance is the way it sometimes pits state against state, government against government. These conflicts have to be kept within certain bounds, of course, but within some range of dynamism, equilibrium, and tension, conflict between governments ensures that there is a space for individual liberty that might not exist if all of the vast power of the different governments teamed up on one side.

I don't mean to suggest that the federalist principles embedded in the constitution or other enforceable structural principles are necessarily non-cooperative rather than cooperative. The point is that it is quite plausible that they are both, or a mix of the two, and Breyer gives us no good reason to prefer one to the other, or even to view things through the lens that he offers.

2: In the chapter on administrative law, Breyer suggests that Chevron deference ought to be viewed through a What-would-Congress-do? lens. That is, courts should defer to agency interpretations if and only if Congress said they should, or, the court thinks that Congress would have delegated the question to the agency if it had thought about it. As an example, he says that "question(s) of national importance" are the kind of thing that Congress would have wanted to decide for itself rather than to defer. Why on earth should this be so? Breyer does not tell us, and it seems to me at least as plausible to suppose that over a large range of "important" questions, Congress would love to pass the buck to somebody else. This is surely why Congress regularly enacts very vague statutes-- preferring not to have to debate and vote on whether, say, Class 1 narcotics are immune to the Religious Freedom Restoration Act but to push the choice off on somebody else.

Again, there may be reasons to forbid Congress from delegating "important" statutory questions (important to whom?) to agencies, but the hypothesis that Congress as a whole loves to decide all "important" questions by roll-call vote is surely not such a reason.

3: When it comes time to consider what Breyer calls "A Serious Objection"-- the possibility of originalist textualism-- Breyer spends the entire chapter explaining why consequentialist defenses of either one are unavailing. Since the book explicitly acknowledges that literalists and textualists are not to be persuaded, this is fine with me. But Breyer cannot bring himself to leave it at that. Instead, he adds:

(T)he more "originalist" judges cannot appeal to the Framers themselves in support of their interpretive views. The Framers did not say specifically what factors judges should take into account when they interpret statutes or the Constitution. . . . Why would the Framers, who disagreed even about the necessity of including a Bill of Rights in the Constitution, who disagreed about the content of that Bill of Rights, nonetheless have agreed about what school of interpretive thought should prove dominant in interpreting that Bill of Rights in the centuries to come?