Tyranny Of The Breyer

Over at Five Books, Justice Stephen J. Breyer takes a turn at listing his five Intellectual Influences in book form. (HT to Todd Zywicki at Volokh Conspiracy for the heads up about the post.)

In the interview, Justice Breyer lists his first book: Democracy In America by Alexis De Tocqueville. After he generally describes it as a masterpiece, he states “Law in America rises from the bottom up, it isn’t decreed from the top down. When we have a new problem, we start with vigorous debate and discussion that can sound like clamour.” So far so good, I agree that is a positive thing, the reason why we have the 1st Amendment to protect it. He then describes the process in the context of privacy:

“Norms about privacy and how privacy relates to free expression are changing. When we want change in an area like that, we start to discuss it – in schools, in associations, in newspapers, in magazine articles. Debate and discussion bubbles up. Some kind of rule is formed, perhaps through an administrative process. We may change it, there may be legislative hearings, our representatives might write a statute and if that isn’t working well, the new rule is tested through the courts to see whether it falls within the boundaries of the constitution.”

Sounds like the normal course of things. After that point, things fall apart with this line: “But in the vast area between the boundaries, democratically elected representatives make decisions, after all sorts of consultation with the people, after all sorts of clamour. Tocqueville encapsulates all that. His work still helps us understand America, 170 years after he wrote it.”

Now, there is no doubt that Justice Breyer believes in the ability of the elected representatives to sort through the various facts, clamour, discussions, and debates. Even in the context of the First Amendment where such events occur, Justice Breyer advocates that the Court defers to the judgement of the Legislatures in general. Two recent examples come to mind, Sorrell v. IMS Health and Brown v. EMA. In his Sorrell dissent, Breyer states that:

“Since ordinary  regulatory programs can affect speech, particularly commercial speech, in myriad ways, to apply a “heightened” First Amendment standard of review  whenever such a program burdens speech would transfer from legislatures to judges the primary power to weigh ends and to choose means, threatening to distort or undermine legitimate legislative objectives.” (Page 5 of the dissent)

And after a discussion of the various research and literature regarding violence and videogames in his Brown v. EMA dissent, Breyer states that:

“Unlike the  majority, I  would find  sufficient grounds in these studies and expert opinions for this Court to defer to an elected legislature’s conclusion that the video games in question are particularly likely to harm children. This Court has always thought it  owed an elected legislature some degree of deference in respect to legislative facts  of this kind,  particularly when they involve technical matters that are beyond  our competence, and even in First Amendment cases.” (Page 16-17 of his dissent)

While such statements and sentiments are normal for Justice Breyer and others who share his judicial philosophy, deference to the legislature shows that Breyer obviously overlooked one of the lasting thoughts expressed by Tocqueville in Democracy in America: the tyranny of the majority. In Book 1, Chapter 15, Tocqueville discusses the major flaw of democracy in that it empowers the majority in such a manner that it will dominate society both politically and morally. In regards to the political aspects, Tocqueville states that:

“Of all political institutions, the legislature is the one that is most easily swayed by the will of the majority. The Americans determined that the members of the legislature should be elected by the people directly, and for a very brief term, in order to subject them, not only to the general convictions, but even to the daily passions, of their constituents. The members of both houses are taken from the same classes in society and nominated in the same manner; so that the movements of the legislative bodies are almost as rapid, and quite as irresistible, as those of a single assembly.

It is to a legislature thus constituted that almost all the authority of the government has been entrusted.”

On the moral aspects:

“IT is in the examination of the exercise of thought in the United States that we clearly perceive how far the power of the majority surpasses all the powers with which we are acquainted in Europe. Thought is an invisible and subtle power that mocks all the efforts of tyranny. At the present time the most absolute monarchs in Europe cannot prevent certain opinions hostile to their authority from circulating in secret through their dominions and even in their courts. It is not so in America; as long as the majority is still undecided, discussion is carried on; but as soon as its decision is irrevocably pronounced, everyone is silent, and the friends as well as the opponents of the measure unite in assenting to its propriety. The reason for this is perfectly clear: no monarch is so absolute as to combine all the powers of society in his own hands and to conquer all opposition, as a majority is able to do, which has the right both of making and of executing the laws.”

In other words, the most destructive thing one can do is rely on majority opinion to determine what actions the legislature should take, which in turn vastly limits the amount of debate while expanding the majority’s power. One would think that listing an Intellectual Influence would meant one actually read the book, but in Breyer’s case, it looks like his jurisprudence reinforces the tyranny of the majority (especially in the context of the First Amendment) rather than counteract it.

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