It’s in this context that U.S. Supreme Court Justice Stephen G. Breyer’s book, “Active Liberty” -- and his discussion of it with Chris Wallace in a videotaped interview broadcast on Fox News Dec. 3 -- are important, and puzzling for the lack of response they’ve drawn, to date.
“Let’s start with the title of your book, ‘Active Liberty,’ ” Mr. Wallace begins. “I’m sure there are some conservatives out there who break out in hives when they hear a judge talking about activism. They get the idea you think it’s OK to read all sorts of things into the Constitution so you get the results you want. ... Let me give you ... a very specific example. You voted in 2003 to uphold the McCain-Feingold campaign finance reform law.” (The court ruled 5-4 in 2003 to uphold the law, banning unlimited donations to political parties.)
“Now, you acknowledge that by setting spending limits on advertising that you were, as you put it, interfering with free speech. But you said that there is a higher purpose here. Higher than the First Amendment?”
Justice Breyer responded: “That isn’t quite what I said. I think what I said was, when you get a case like that, you start to look to slogans to decide the case. It won’t work. The First Amendment itself, ‘the freedom of speech,’ doesn’t tell you the answer. Nor does a slogan.
“If you want to use the slogan, ‘Money is at stake, not speech,’ that seems to work,” Justice Breyer continued. “That means they can regulate anything. But if you think about it for two minutes, you realize that money is very important to speech, because no one can run for office and have his message heard without money. So the First Amendment is involved.
“Then if you think the opposite, ‘Well, wait a minute, these campaign finance limits, what they’re doing is they are telling the person who wants to give $20 million that he can’t finance all the speech he wants. Doesn’t that violate the First Amendment?’ I’d say that’s a slogan. Why? Because think about that First Amendment. It was done, enacted, passed, to help our country of now 300 million citizens run fair and free elections.
“The very point of speech in an election is to get a message across,” Justice Breyer concluded. “And that may mean, in part, that you don’t want one person’s speech, that $20 million giver, to drown out everybody else’s. So if we want to give a chance to the people who have only $1 and not $20 million, maybe we have to do something to make that playing field a little more level in terms of money. ...”
Where to begin? A member of our high court has just said that if Congress is only regulating money, and not speech, “they can regulate anything.”
And here I thought the Constitution which Justice Breyer swore an oath to protect and defend sharply limited the things Congress can regulate. Nowhere in Article I Section 8 of my copy can I find: “The Congress shall have Power To ... regulate any Thing which is valued in Money.”
Then, the justice informs us that the First Amendment was “done, enacted, passed, to help our country of now 300 million citizens run fair and free elections.”
Funny. I thought the founders made it very clear that “All men are ... endowed, by their Creator, with certain unalienable Rights. ... That to secure these rights, Governments are instituted among Men. ...”
The rights protected by the Constitution are not “granted” by the government to achieve any single pragmatic end, even one so noble-sounding as facilitating “fair and free elections.” Yes, they often happily contribute to such outcomes. But the court is not free to trim and snip and alter those rights to achieve some end which any five justices today consider desirable.
What might be justified, in the long run, by such a desire to “level the playing field”?
Seizing 10 percent of the assets of the “$20 million” speaker and redistributing them to those one-dollar little guys? Half his assets? Who will get to decide which speakers get a share? (Current schemes to supplement campaign funds with tax moneys rarely seem to hand over any loot to third party candidates with anything really fresh to say -- or even allow them into televised debates. Isn’t that a shock?)
And why stop with campaign ads? Doesn’t every existing television station have the potential to “drown out” those little guys without access to such media? Will Justice Breyer and his brethren next decide it’s OK to tax those “fat cats” in order to finance the expressions of those who have proved unable to attract enough private investors to help THEM buy a newspaper or TV station?
One irony here is the fact that this dangerous nonsense is being peddled at precisely the historical moment when the “little guy” has more ways to get his message out than ever before, thanks to e-mail, the Internet, and call-in talk radio.
But this activist notion that the court can ignore, stray from, or substantively revise the text of our founding document without going through the cumbersome process of formal amendment -- all because they pretend to be able to divine the “pragmatic goal” the founders had in mind when they wrote any given article of the Bill of Rights -- stretches far beyond the single issue of campaign finance.
This is the “pragmatic” approach that for 70 years has allowed the court to say with a straight face, “That Second Amendment business about ‘not infringing the right to keep and bear arms’? No, no, you misunderstand. That was enacted with the pragmatic purpose of making sure householders would have their flintlocks handy when the militia had to be called out to repel a Redcoat invasion. In this day and age, with our modern police forces and standing army, we don’t need that any more, so the words of that outdated provision can be safely ignored.”
Needless to say, that’s a purposeful lie. The founders often quoted the Scottish Whig Andrew Fletcher, from whom they acquired the phrase “well-regulated militia.” Fletcher famously held that “The possession of arms is the distinction between a freeman and a slave.”
What becomes of the supposedly free man who gives up his arms and trusts others to defend him, Fletcher asked. “Though for awhile those who have the sword in their power abstain from doing him injury; yet, by degrees, he will be awed into submission to every arbitrary command.” (Political Works 6, 1749.)
The founding fathers warned us over and over that would-be tyrants will always begin by seeking to disarm the people; liberty can survive only so long as the common people possess both the spirit and the means to resist incremental oppression. “The militia, who are in fact the effective part of the people at large,” promised the prominent federalist Tench Coxe, in his 1788 “Examination of the Constitution,” “will form a powerful check upon the regular troops, and will generally be sufficient to over-awe them.”
The founders well remembered how the professional Roman legions had converted Rome from a republic into a dictatorship.
“Who are the militia?” Coxe reiterated in the Pennsylvania Gazette of Feb. 20, 1788. “Are they not ourselves? ... Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American.”
Suspicious of the assurances of Coxe, Jay and Madison -- warning that this new Constitution might eventually allow the central government to attempt to disarm the common folk (despite furious denials by the federalists that this could ever happen) -- Patrick Henry intoned “The great object, is that every man be armed.. ... Everyone who is able may have a gun.” (92 Elliot, DEBATES, at 386.)
Does this sound like the founders were just waiting for someone to invent a municipal police department -- an outfit they would have branded a dangerous “special militia” -- so all the people’s small arms could be incrementally “licensed,” regulated, rounded up and crushed?
Woe betide a people who allow their judges to decide for which of the people’s rights the people still have a “pragmatic need.” For what pragmatic “need” do you have, really, to attend church when you please, to publish books which spread discontent about the government, or to gather in the streets without a “permit”?
Associated Press reporter Hope Yen on Dec. 5 summarized the position Mr. Breyer espoused in the TV interview as follows: “Justice Stephen G. Breyer says the Supreme Court must promote the political rights of minorities and look beyond the Constitution’s text when necessary to ensure that ‘no one gets too powerful.’ ...
“In his interview, Breyer argued that in some cases it wouldn’t make sense to strictly follow the Constitution because phrases such as ‘freedom of speech’ are vague. Judges must look at the real-world context -- not focus solely on framers’ intent, as Scalia has argued -- because society is constantly evolving, he said.”
A Supreme Court justice has just voluntarily admitted in public that he intends to continue violating his oath to “protect and defend the Constitution,” as written. And the public response has been? Renewed discussion of whether we need a Division I college football playoff.