Active Liberty: Interpreting Our Democratic Constitution [Paperback]

Stephen Breyer (Author)

Book Description

ISBN-10: 0307274942 | ISBN-13: 978-0307274946 | Publication Date: October 10, 2006

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.

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)
Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved. --This text refers to the Hardcover edition.

From Booklist

An associate justice of the Supreme Court, Breyer proposes a framework for approaching constitutional issues that gives priority to the underlying purposes of the Constitution when engaging such issues. The underlying constitutional value with which he is most concerned is "active liberty," which places emphasis on democratic participation. To a lesser extent, Breyer is concerned with modern liberty, or government intrusion on the rights of individuals. Breyer maintains that the value of participation in a democracy can impact -decision-making, and he gives examples in affirmative action, free speech, and federalism. His position contrasts sharply with the strict constructionist approach favored by certain of his more conservative cohorts, who try to limit their focus to the strict language of the Constitution and other statutes. Interestingly, Breyer's approach has much in common with certain conservative values, as the active liberty approach tends to defer to Congress. However, for the purpose of greater citizen participation, he envisions an approach that is adaptive and changes over time. Rather than looking exclusively to the past, Breyer appreciates the need to engage the Constitution as a living document. Vernon Ford
Copyright © American Library Association. All rights reserved --This text refers to the Hardcover edition.

See all Editorial Reviews

Product Details

• Paperback: 176 pages
• Publisher: Vintage (October 10, 2006)
• Language: English
• ISBN-10: 0307274942
• ISBN-13: 978-0307274946
• Product Dimensions: 5.2 x 0.5 x 8 inches
• Shipping Weight: 7.2 ounces (View shipping rates and policies)
• Average Customer Review: 3.6 out of 5 stars  See all reviews (42 customer reviews)
• Amazon Best Sellers Rank: #133,139 in Books (See Top 100 in Books)

More About the Author

Discover books, learn about writers, read author blogs, and more.

Customer Reviews

Most Helpful Customer Reviews

107 of 119 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)   

This review is from: Active Liberty: Interpreting Our Democratic Constitution (Hardcover)

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.

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

By 

Ronald H. Clark (WASHINGTON, DC USA) - See all my reviews
(VINE VOICE)    (TOP 1000 REVIEWER)    (REAL NAME)   

Amazon Verified Purchase

This review is from: Active Liberty: Interpreting Our Democratic Constitution (Hardcover)

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.

25 of 28 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

This review is from: Active Liberty: Interpreting Our Democratic Constitution (Hardcover)

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.