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"the people's right to "an active and constant participation in collective power." - Justice Breyer:
"Our Democratic Constitution"
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Stephen Breyer
Associate Justice
Supreme Court of the United States
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The Fall 2001 James Madison Lecture
New York University Law School
New York, New York
October 22, 2001
The United States is a nation built on principles of human liberty--a liberty that embraces concepts of democracy. The French political philosopher Benjamin Constant understood the connection. He distinguished between liberty as practiced by the ancient Greeks and Romans and the "liberty" of the eighteenth and nineteenth century "moderns."1 Writing thirty years after the French Revolution and not long after the adoption of our American Constitution, Constant said that the "liberty of the ancients" consisted of an "active and constant participation in collective power." The ancient world, he added, believed that liberty consisted of "submitting to all the citizens without exception the care and assessment of their most sacred interests." Liberty thereby "ennobles their thoughts and established among them a kind of intellectual equality which forms the glory and power of a people."
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To re-emphasize the constitutional importance of democratic self-government may carry with it a practical bonus. We are all aware of figures that show that the public knows ever less about, is ever less interested in, the processes of government. Foundation reports criticize the lack of high school civics education.53 Comedians claim that more students know the names of the three stooges than the three branches of government. Even law school graduates are ever less inclined to work for government - with the percentage of those entering government (or non-government public interest) work declining at one major law school from 12% to 3% over a generation. Indeed, polls show that, over that same period of time, the percentage of the public trusting the government declined at a similar rate.54
This trend, however, is not irreversible. Indeed, trust in government has shown a remarkable rebound in response to last month's terrible tragedy.55 Courts cannot maintain this upward momentum by themselves. But, courts, as highly trusted government institutions, can help some,56 in part by explaining in terms the public can understand just what the Constitution is about. It is important that the public, trying to cope with the problems of Nation, State, and local community, understand that the Constitution does not resolve, and was not intended to resolve, society's problems. Rather, the Constitution provides a framework for the creation of democratically determined solutions, which protect each individual's basic liberties and assures that individual equal respect by government, while securing a democratic form of government. We judges cannot insist that Americans participate in that government, but we can make clear that our Constitution depends upon it. Indeed, participation reinforces that "positive passion for the public good," that John Adams, like so many others, felt a necessary condition for "Republican Government" and any "real Liberty."57
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