- Paperback: 176 pages
- Publisher: Vintage; 1 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: 3.8 out of 5 stars See all reviews (53 customer reviews)
- Amazon Best Sellers Rank: #112,174 in Books (See Top 100 in Books)
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Active Liberty: Interpreting Our Democratic Constitution 1st Edition
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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.
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.
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Top Customer Reviews
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.
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.
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.
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.