Active Liberty: Interpreting Our Democratic Constitution

By in Constitutional Law on March 6, 2013

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A brilliant new approach to the Constitution and courts of the United States by Supreme Court Justice Stephen Breyer.For Justice Breyer, the Constitution’s primary role is to preserve and encourage what he calls “active liberty”: citizen participation in shaping government and its laws. As this book argues, promoting active liberty requires judicial modesty and deference to Congress; it also means recognizing the changing needs and demands of the populace. Indeed, the Constitution’s lasting brilliance is that its principles may be adapted to cope with unanticipated situations, and Breyer makes a powerful case against treating it as a static guide intended for a world that is dead and gone. Using contemporary examples from federalism to privacy to affirmative action, this is a vital contribution to the ongoing debate over the role and power of our courts.

3 thoughts on “Active Liberty: Interpreting Our Democratic Constitution

  1. Jerry H. Tempelman ""
    109 of 121 people found the following review helpful
    4.0 out of 5 stars
    Liberal argument against legal doctrine of originalism, September 13, 2005

    U.S. Supreme Court Justice Stephen Breyer’s Active Liberty is an articulate short volume that argues that judges are to interpret the Constitution in a way “that helps a community of individuals democratically find practical solutions to important contemporary social problems.” Justice Breyer’s philosophy of judicial interpretation is squared against that of originalism, which argues that the law, including the Constitution, is to be interpreted in line with its original meaning and the Founding Fathers’ intent. Originalists argue that the meaning of the Constitution does not change (“evolve”) over time. Justice Breyer is among those who argue that it does. Originalists would counter that if the Constitution is to be changed, this should occur via constitutional amendment rather than via a new and subjective interpretation by a sitting judge or justice.

    Justice Breyer argues that what matters is “the document’s underlying values” and a law’s consequences, not a “rigid,” restrictive interpretation of its text. He argues that the Founding Fathers’ intent is not always quite as clear as originalists make it out to be. Furthermore, the Constitution is at times deliberately vague because it was meant to apply to changing times. Thus, he argues, originalists are no less subjective than those who are not.

    Originalism first jumped from the pages of legal journals to the arena of political debate following a 1985 speech to the American Bar Association by then Attorney General Edwin Meese III. The case for originalism was more recently argued by Supreme Court Justice Antonin Scalia in his superb 1997 book A Matter of Interpretation, which includes dissenting philosophies by several distinguished legal philosophers. Justice Breyer’s Active Liberty makes a worthwhile contribution to this continuing debate. Like Justice Scalia’s volume, it is short, and its language is highly accessible to non-lawyers.

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  2. Ronald H. Clark
    50 of 55 people found the following review helpful
    4.0 out of 5 stars
    Justice Breyer’s Views on the Goal of Constitutional Interpretation, October 27, 2005
    Ronald H. Clark (WASHINGTON, DC USA) –
    (TOP 1000 REVIEWER)

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    A book touching upon constitutional interpretation by a sitting Justice has to be of substantial interest to students of the Court. That is true of this slender volume by Justice Breyer as well–but the book is hard to categorize, and I am not quite sure what he hoped to accomplish in this published version of his Tanner Lectures. Certainly, he is not squaring off by name against the contrasting views of Justice Scalia, as expressed in “A Matter of Interpretation” and “Scalia Dissents” (edited by K. Ring), or Justice Thomas. In fact, there are few references to either in this volume. He comes closest to this kind of focused debate in the final section of the book designated as “A Serious Objection.” There he does critically focus in on the originalist/literalist approach and does so in a highly effective matter. I would suggest that reading this chapter first may put the remainder of the volume in better perspective. But be forewarned, this book is not designed to be a point-by-point, head-on refutation of the Scalia/Thomas approach.

    The Justice’s key contention is that in interpreting the Constitution and statutes, judges should take into account what result will facilitate the “people’s” greater participation and involvement in their own government. This formula is expressed in a variety of ways, but that seems to be his main point. He discusses how this perspective would bear beneficial results in a number of areas (e.g., federalism, speech, privacy, affirmative action, administrative law) and how applying this approach results in interpretation that is closer to the intent of the drafters, be it the Constitution or statutes. One can only imagine the reaction of Justice Scalia to this type of argument, since it is admittedly somewhat “fuzzy” and imprecise and is basically discounting the role of the text as written in favor of more abstract and highly personal concepts of “democracy.”

    The book is very well written (one would hardly know they originated as lectures), and as is to be expected from Breyer highly polite and reasonable. To the extent it is not more of a point-by-point refutation of the Scalia approach, it is a bit of a disappointment. That Breyer is fully capable of this is evidenced in the American University debate the Justices had on January 18, 2005, regarding the role of foreign law in constitutional interpretation (transcript available of The rich compensation for this deficiency, however, is that the book affords a very valuable perspective into how the Justice approaches questions of interpretation–and for this we can be very thankful.

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  3. James Carroule
    25 of 28 people found the following review helpful
    5.0 out of 5 stars
    Active Liberty and the Reasonable Legislator, October 4, 2005
    James Carroule (Michigan, USA) –

    Justice Breyer has two main lines of arguments, “Active Liberty” and the less talked about “Reasonable Legislator”, which are connected by the overarching theme of supporting democracy. “Active Liberty” suggests that when the legal air is foggy, emphasizing active participation of the people in decision making should be used to clarify. “Reasonable Legislator” suggests that when a law is ambiguous, a judge should invoke the spirit of a reasonable legislator to determine what he/she likely would intend, even if none of the legislators had anticipated the tricky knot their law tied.

    There are potential conflicts in his “reasonable legislator” proposal with other points of view in the book. For example, as Justice Breyer envisions it, “The judge will ask how this person [reasonable legislator] … would have wanted a court to interpret the statute in light of present circumstances in the particular case” (p. 88). However, one case he discusses is an interesting recent court decision parsing the language and intent of the Federal Arbitration Act of 1925 (p. 91+). Must a judge really need to know the comprehensive historical context of 1925 America and conjure up Babbitt to ask him for guidance on his unspecified, subtle legislative aims? If so, would not this be subject to the same criticism he applies to ‘originalist’ approaches: “‘the more ‘originalist’ judges cannot appeal to the Framers themselves in support of their interpretive views” (p. 117). Since Justice Breyer acknowledges that “Judges are not expert historians” (p. 126), I have not yet gained a full appreciation of this approach.

    My amateur criticisms aside, I thoroughly enjoyed the book. As a non-lawyer I felt both enlightened by the content and encouraged by the thoughtful tone.

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