Lieb on Breyer Mike Rappaport
Ethan Leib has an excellent review of Stephen Breyer’s book, Active Liberty. While I don’t always agree with Ethan, I agree with every thing he says about Breyer’s book. Here is an excerpt:
If pressed, I don’t really think Breyer could say that democratic active liberty is the core of the book. Instead, he sees ours as a “delegated democracy,” a phrase that appears many times in the book and probably would have been a better title. Behind “delegated democracy” is something less democratic than a principle of active liberty of each citizen to participate in self-governance: it is rule by professional politicians and technocrats who make consequentialist decisions. The role of the judge is no different in this view of “delegated democracy;” the courts have certain institutional competences and they ought to make pragmatic, consequentialist decisions within their realm of expertise.
I would add that Breyer probably calls his book “Active Liberty” rather than “Delegated Democracy” because people would probably object to his conception if it was more accurately named. Breyer got a good bit of criticism for the last third of his environmental law book, Breaking the Vicious Circle, where he more openly defended technocracy.