Active Liberty: Interpreting Our Democratic Constitution (Hardcover)

~ Stephen Breyer (Author)

Editorial Reviews

From Publishers Weekly

Starred Review. Supreme Court Justice Breyer offers his view of constitutional interpretation at a crucial time, when the Court's future is very much at stake. Breyer himself made the crucial deciding votes recently in the two 10 Commandments cases: he notably split his vote, supporting the display in Texas and opposing the one in Kentucky, a nuanced choice that confounded many and that he explains lucidly here. Breyer works this explanation into a larger look at an important aspect of his judicial philosophy: the need for justices to look at cases in light of how their decisions will promote what he calls "active liberty," the Constitution's aim of promoting participation by citizens in the processes of government. It's an approach that emphasizes "the document's underlying values" and looking broadly at a law's purpose and consequences rather than relying on a rigid overarching theory of judicial interpretation.The justice looks at six areas of law to show how this approach influenced, or might have influenced, high court decisions on free speech, affirmative action, and privacy, among others. For instance, in free speech, Breyer notes that an active-liberty outlook would have led the Court to support campaign finance laws controlling soft-money contributions. He explains how the Court's decision in favor of the University of Michigan law school's affirmative action program supported the participation of minorities in our political system. (Interestingly, he doesn't discuss the Court's simultaneous decision against the university's undergraduate affirmative action program.)Breyer saves his hard ball for the very end: a calm, judicious but powerful attack on the interpretive approach of some of his judicial colleagues, what he calls an "originalist" approach, relying primarily on a close reading of the text of a statute or the Constitution. Anticipating originalists' criticism that only their approach can prevent judicial subjectivity, Breyer forcefully illustrates the many constraints on subjectivity and shows that originalism is not as objective as they claim. Breyer's prose is admirably simple and clear, and his discussion shows a keen legal intellect that espouses broad values rather than narrow theories, and a deep, humane concern with fostering democracy and the well-being of the citizenry. This will be essential reading at a possibly watershed moment for the Supreme Court. 50,000 first printing. (Sept. 17)
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From The Washington Post

In 1997, Supreme Court Justice Antonin Scalia published a remarkable little book expounding his judicial philosophy, which he calls "textualism." Concise, accessible to the layman and charmingly written, A Matter of Interpretation was a kind of manifesto that laid out a coherent, conservative approach to modern adjudication.

Now, Justice Stephen Breyer has written a kind of response. Active Liberty, like Scalia's volume, can be read in a sitting. While it deals seriously with important debates in American law -- indeed, with the important debates in American law -- it does so in terms that should not put off educated members of the general public. And it binds the apparently disparate threads of Breyer's moderate, cautious, liberal jurisprudence together in an analytically coherent framework. With John G. Roberts Jr. now poised to take over as chief justice, these two books neatly outline the intellectual debate into which the new chief will step.

Breyer's project is harder than Scalia's, for while Scalia can pound the table demanding that judges faithfully apply the specific text that legislators enacted, Breyer's philosophical position does not boil down to any simple slogan. He argues, rather, that judges need to pay more attention to what he terms "active liberty." By this he means the people's ability to govern themselves and participate in the functioning of their political culture -- the democratic purposes that lie at the core of the Constitution. Judicial approaches that cling strictly to the Constitution's text, he contends, have "a tendency to undermine the Constitution's efforts to create a framework for democratic government -- a government that, while protecting basic individual liberties, permits citizens to govern themselves, and to govern themselves effectively." Breyer agrees that the Constitution's democratic purposes demand judicial modesty and restraint. But he also regards them as representing "a source of judicial authority and an interpretive aid to more effective protection" of both individual freedoms and democratic participation. In other words, judges should consider how different readings will affect American democracy and, all things being equal, choose interpretations that make it function more effectively.

The idea of interpreting disputed constitutional provisions in light of the document's democratic purposes is not new. It was a major theme of the late John Hart Ely's majestic 1980 book Democracy and Distrust. And Breyer's unapologetic appeal for judges to consider the practical consequences of equally plausible constructions of constitutional or statutory provisions is reminiscent of the vision of judicial "pragmatism" offered by Judge Richard A. Posner of the U.S. Court of Appeals for the 7th Circuit, a vision that generally stresses that judges should pay attention to real-world, practical considerations.

What Breyer's book brings to the table, however, is an elegant synthesis of these two themes, combined with a stronger democratic foundation than most liberal constitutional theory (which tends to appeal to notions of abstract justice or moral philosophy) can boast. Breyer is not here looking to abstractions to defend overturning laws. Rather, he is arguing that fidelity to the text of the Constitution or statutes alone, to the exclusion of their purpose, can risk a broader infidelity to the values their drafters sought to enact.

In support of his thesis, Breyer examines several areas of ongoing controversy before the high court: free speech and campaign finance, federalism, privacy, affirmative action and how much deference courts should show when reviewing actions by federal agencies. In each instance, he attempts either to justify the court's course in terms of the Constitution's democratic purpose or to critique the court for taking a more narrowly interpretive tack. The justice is more successful in some of these areas than in others; his defense of campaign-finance reform seems strong, for instance, and some of his examples of the problems with narrowly literal interpretations of statutes should deeply challenge those enthralled with Scalia's brand of textualism.

Yet while the brevity of Active Liberty is surely among its virtues, some of his examples are sadly underdeveloped. Breyer spends a scant 10 pages talking about federalism (the balance of power between the federal and state governments), a theme involving multiple and quite disparate lines of cases. The result is that he barely gives himself space to sketch his criticisms of the Rehnquist court's path and propose his alternative. In general, the book would have benefited from either fewer examples or a few dozen more pages.

The book's biggest flaw is that Breyer does not address those areas where his jurisprudence seems at odds with his broad theme of promotion of democracy in American life. Breyer is a supporter of abortion rights as a matter of federal constitutional law, for example. It's hard to see how this approach is tailored to encourage democratic participation; rather, constitutionalizing abortion rights removed one of the nation's most hotly debated subjects from the realm of democratic decision-making. Similarly, in the past few years, Breyer has been part of a majority on the high court that has reined in the use of the death penalty, using an evolutionary vision of the Eighth Amendment's ban on cruel and unusual punishment under which the requirements of the provision change from year to year. How can state governments (and the citizens they represent) reasonably adopt aggressive punitive practices if they don't even know what the Constitution will forbid in the future? This is not to say Breyer is wrong on these doctrines or that one cannot envision plausible answers to this problem. But he offers none.

Still, in a political culture increasingly obsessed with questions of judicial methodology, this book, like Scalia's before it, is an important contribution. Active Liberty serves to clarify the stakes in contemporary disputes over the courts, rightly emphasizing areas of common ground alongside those of controversy. A person who wants a crash course in what separates liberal and conservative judges, and the strengths and weaknesses of both sides, could do a lot worse than to read these two works side by side.

Reviewed by Benjamin Wittes
Copyright 2005, The Washington Post. All Rights Reserved.

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Product Details

• Hardcover: 176 pages
• Publisher: Knopf (September 13, 2005)
• Language: English
• ISBN-10: 0307263134
• ISBN-13: 978-0307263131
• Product Dimensions: 7.6 x 5.2 x 0.8 inches
• Shipping Weight: 8.8 ounces (View shipping rates and policies)
• Average Customer Review: 3.6 out of 5 stars  See all reviews (37 customer reviews)
• Amazon.com Sales Rank: #233,262 in Books (See Bestsellers in Books)

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Most Helpful Customer Reviews

95 of 106 people found the following review helpful:

4.0 out of 5 stars Liberal argument against legal doctrine of originalism, September 13, 2005

By	Jerry H. Tempelman "[e-mail]" (New York, NY) - See all my reviews (REAL NAME)

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.

43 of 48 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

By	Ronald H. Clark (WASHINGTON, DC USA) - See all my reviews (TOP 500 REVIEWER)    (REAL NAME)

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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 Ninowatch.com). 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.

23 of 26 people found the following review helpful:

5.0 out of 5 stars Active Liberty and the Reasonable Legislator, October 4, 2005

By	James Carroule (Michigan, USA) - See all my reviews

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.