Charles Fried, Constitutional Law, Fashion, Hair, Neal Katyal, SCOTUS, Stephen Breyer, Supreme Court

The Breyer-Fried Discussion: Some Highlights (Part 1)

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As we mentioned earlier, on Friday we headed downtown to Georgetown Law School for “On Liberty: A conversation between Justice Stephen Breyer and Professor Charles Fried,” of Harvard Law School. We were invited to this event by Georgetown Law Professor Neal Katyal (whom we thank for his hospitality).
Yesterday we shared with you our photos from the event. Now, the first half of our write-up — after the jump.


The event took place inside McDonough Hall at Georgetown Law. It’s a modern, well-lit room, with comfortable stadium seating.
We could have tried to sit with the press, but their seats were all the way at the back, so we blended in with the students and sat closer to the front. We had a good view. Unfortunately, someone in our vicinity had a bad case of BO.
Law students: even smellier than bloggers.
First, a fashion and style assessment of the three panelists:

Justice Stephen G. Breyer (SGB): well-dressed, but possibly wearing the same grey suit he wore to his recent debate with Justice Scalia.

Professor Charles Fried (CF): pleasantly rumbled, professorial. Navy suit, pale blue-and-white striped shirt, and reddish-brown loafers. Surprisingly casual footwear, especially compared to SGB’s black lace-ups.

CF looks like a bigger version of SGB: taller, larger head, wider frame. But for the most part, the two men look similar: older, lanky, lean white males, with aristocratic bearings and grey hair (Breyer has less than Fried).

Professor Fried may actually have TOO much hair: one tuft sticks out conspicuously from the top of his head. This is the so-called “horn” that commenter G was curious about.

Professor Neal Katyal (NK): sharply dressed in a dark suit and white shirt; handsome. He could be the romantic lead in a Bollywood film.

Most web photos don’t do him justice. Like this one, in which he looks like the South Asian version of Harold Ramis.

NK introduces the speakers. Of Justice Breyer, he says: “He works every night, every weekend. It’s very good for the taxpayers, but very bad for the law clerks!”
(Katyal should know — he’s a former Breyer clerk himself, as well as a Guidomaniac.)
The speakers deliver brief remarks before the discussion turns into a more free-flowing exchange. SGB makes many of the same points that he made at the event with Justice Scalia. He refers to Benjamin Constant’s two conceptions of liberty, “ancient liberty” and “modern liberty.” Here’s the Wikipedia summary (which you can take with as many or as few grains of salt as you like):

The Liberty of the Ancients was a participatory, republican liberty, which gave the citizens the right to directly influence politics through debates and votes in the public assembly. In order to support this degree of participation, citizenship was a burdensome moral obligation requiring a considerable investment of time and energy. Generally, this required a sub-society of slaves…

The Liberty of the Moderns, in contrast, was based on the possession of civil liberties, the rule of law, and freedom from too much state interference. Direct participation would be limited: a necessary consequence of the size of modern states, and also the inevitable result of having created a commercial society in which there are no slaves but almost everybody must earn a living through work.

It appears from their remarks that SGB’s concept of liberty is closer to “ancient liberty,” i.e., liberty through civic participation, and CF’s concept of liberty is closer to “modern liberty,” i.e., liberty through freedom from (excessive) government.
Also, it becomes clear that SGB is more interested in constitutional interpretation, while CF — a recovering judge, who once sat on the Massachusetts Supreme Judicial Court — is more interested in foundational questions of political theory. But SGB won’t venture into that territory, because he identifies himself as a judge, not a philosopher.
(So the event is quite accurately described as a “conversation,” rather than a debate. There’s not much joining of issue — certainly not as much during the Nino-Breyer Smackdown.)
CF talks about his new book, Modern Liberty. He sets forth the axioms that are the foundation of his analysis: “I own my mind, my body…. That’s why I have a chapter on sex.”
Awkward laughter. It’s like grandpa asking you if you use protection.
CF reads an excerpt from his book. Before he launches into the reading, he says:

I’m told you’re supposed to read from your book on book tours. (Pause.) But maybe that’s if you have a book of poetry. (Laughter.) Ah, but this is very poetic!

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He then reads a short excerpt about self-ownership and markets. What a great reading voice! A perfect mix of gravitas and warmth. He could make a living reading books-on-tape. We love the Boston brahmin way he pronounces “rather”: RAAHHHH-ther.
After CF finishes, the discussion opens up. NK reads a question submitted remotely by Yale Law School Professor Bruce Ackerman. It’s a vintage Yale Law question, since it contains the word “false dichotomy.”
SGB agrees with Ackerman that the dichotomy between “ancient liberty” and “modern liberty” is false. The Constitution protects both forms, to a certain extent. Ackerman’s question lands with a big “thud.”
Random funny exchange:

SGB: I’m not really an economist. But I did teach antitrust. [Laughter.] And economic regulation. [More laughter.]

NK: Teaching something doesn’t make you an expert. [Laughter.]

SGB: No no, I WAS an expert. [Still more laughter.]

And we join in. SGB is very funny! And he says that last sentence with the delicious imperiousness one would expect from a Supreme Court justice (even if he’s partly joking).
Then comes the funny Grey’s Anatomy exchange. We wrote about it earlier — see here.
We actually have a few more comments, but this post has gone on long enough. We’ll save the rest for later.
Now, back to the bonuses…
Earlier: The Breyer-Fried Discussion: A Photo Essay
A Quick Note on the Breyer-Fried Discussion

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