An approach to the Constitution that is appropriate to the times
E. J. Dionne's Talking Sense On Court Choices in today's Washington Post is a good read. It's about issues raised by Justice Stephen Breyer in a series of lectures at Harvard University, specifically on the error that is strict constructionism (it seems the good Justice was less direct than I in his description, but he gotta work with them folks).
Breyer's master concept is "active liberty." He argues that the point of our Constitution is democracy -- to guarantee "the principle of participatory self-government" that gives the people "room to decide and leeway to make mistakes."
He suggests that justices who focus primarily on the Constitution's text and "the Framers' original expectations narrowly conceived" miss the Founders' basic intention. Their purpose, Breyer says, was "to create a framework for democratic government -- a government that, while protecting basic individual liberties, permits citizens to govern themselves, and to govern themselves effectively."
It was a week of lectures, so the very idea of a transcript at this point is absurd. But Dionne does go into the reason Justice Breyer is concerned:
…Breyer's worries about the new trends are rooted in his criticisms of the courts of the late 19th and early 20th centuries. He argues that they "underemphasized the constitutional importance of participation by black citizens in our representative democracy and overemphasized the importance of constitutional protections of property."
…the corrective that is apparently being reversed:
Later courts -- the New Deal and the Warren courts -- "emphasized the Constitution's protection of the citizen's freedom to participate in government" and thereby expanded "the scope of democratic self-government."
…and the reason it is appropriate to compare the current judiciary to that of the turn of the century:
…This new conservatism is actually a very old conservatism. It marks a return to the time before the mid-1930s when judges struck down all sorts of decent laws -- for example, regulating the number of hours people had to work without overtime pay -- reasoning that such statutes violated contract and property rights. Such rulings denied legislators the ability to resolve social problems and make our society more just. The pre-New Deal judiciary that many conservatives are now trying to restore was the truly "imperial judiciary."
Though I'm pretty sure the above quote is pure Dionne, it is dead on. See the article on overtime regulation, linked in the previous post.
