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Active Liberty: Interpreting Our Democratic Constitution 9.10.2006 Edition

3.7 out of 5 stars 49 customer reviews
ISBN-13: 978-0307274946
ISBN-10: 0307274942
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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 an out of print or unavailable edition of this title.

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 an out of print or unavailable edition of this title.

Product Details

  • Paperback: 176 pages
  • Publisher: Vintage; 9.10.2006 edition (October 10, 2006)
  • Language: English
  • ISBN-10: 0307274942
  • ISBN-13: 978-0307274946
  • Product Dimensions: 5.1 x 0.5 x 8 inches
  • Shipping Weight: 7.2 ounces (View shipping rates and policies)
  • Average Customer Review: 3.7 out of 5 stars  See all reviews (49 customer reviews)
  • Amazon Best Sellers Rank: #31,211 in Books (See Top 100 in Books)

Customer Reviews

Top Customer Reviews

By Ronald H. Clark VINE VOICE on October 27, 2005
Format: Hardcover Verified Purchase
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.
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Format: 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.
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Format: Hardcover
Justice Breyer's ostensible goal is to explain what he thinks is the best way for judges to interpret the Constitution. This, he says, is to read it so as to further participatory democracy while safeguarding rights. He is not a great wordsmith, and his explanation sometimes seems murky. Despite his initial emphasis on participatory democracy, much of the text describes and justifies efforts to see how the consequences of an interpretation conform to the intent of the law or Const'l provision in question. Often, that intent has little if anything to do with participatory democracy.

I find clearer and more powerful, in fact devastating, his critiques of the Scalia-Thomas-Bork brand of textual literalism. He shows how this is as subjective an approach as any other, and can lead to nasty results, not just in terms of his own approach to the Const., but in terms of common sense and common decency. Breyer nevertheless credits the literalists with objectivity, but the examples of their decisions that he provides, as well as such hypocrisies as Bush v. Gore, suggests that they are as concerned with consequences as he is, although without his favorable attitude toward democracy.
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Other reviews have already covered the content of this book, especially the Washington Post review on this page. Whether you agree with Breyer's philosophy or not, this book is worth reading if you're interested in learning first-hand why people with Breyer's outlook oppose the textualist approach to Constitutional interpretation taken by Scalia and others.

This book is really slim, and at $21 is overpriced (so buy it on Amazon with the offered discount!). It is based on a set of lectures Breyer gave, so don't expect a fleshed-out scholarly monograph. I would love to read Breyer's arguments and examples in a more well-developed form. Nevertheless, I think the book clearly lays out Breyer's ideas and conveys the broad structure of his argument. Most importantly, books like this give readers first-hand access to a Justice's thinking; this is can be more attractive than reading someone else's summary of a Justice's philosophy.
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