Freedom's Just Another Word for Soft on Crime

Justice Breyer's book is out, and it is brief yet dull. It's not a chatty little tome, it's dense and closely argued, a progressive argument culminating in a coherent pragmatist manifesto. The Washington Post says you can read it in a sitting, and you can, if you can sit for eight hours with a pot of coffee close at hand.

I have a strong sense that only a true constitutional scholar can really understand many of the points he's trying to make here - this is, after all, a man who has ruled both for and against the public display of the Ten Commandments on government property, a decision turning, I'm sure, on some very neat mental gymnastics.

One item has caught my eye, however.

Citing the Swiss philosopher Benjamin Constant, Breyer draws a distinction between "ancient liberty" (he calls it "active liberty"), in which the people have significant participation in their government (as in the Athenian democracy); and "modern liberty", which emphasizes the rights of individuals to conduct their lives as they see fit.

If I understand him, he views both as needing restraint: excessive 'ancient liberty' leads to mob rule, while excessive 'modern liberty' leads to a soft and hedonistic body politic, unable to summon up the vital essences of energy and manful striving that are the lifeblood of a dynamic and purposeful nation.

Your basic enlightened Supreme Court Justice should hold both concepts in his mind as he parses the arguments for and against the latest Arkansas law prohibiting french kissing by underage drug users within 1 mile of a school or playground.

Anyway, 64 minutes of Breyer goodness is here, and a Slate review is here. I'm actually enjoying the book - it's nice to hear from a judge who doesn't claim to have an infallible system for interpreting the constitution.