Active Liberty: Interpreting Our Democratic Constitution

by Stephen G. Breyer

Book Overview

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... This description may be from another edition of this product.

• Format: Hardcover
• Language: English
• ISBN: 0307263134
• ISBN13: 9780307263131
• Release Date: September 2005
• Publisher: Alfred A. Knopf
• Length: 161 Pages
• Weight: 0.60 lbs.
• Dimensions: 0.7" x 5.3" x 7.8"

Customer Reviews

Excellent discussion of judicial philosophy

Justice Breyer clearly lays out the differences in philosophy between "textualists" or "orginalists" on the Supreme Court and those who view things in context and in the changed world. It is an effective counter to Justice Scalia, well worth reading.

The Pro-Democracy Approach, Perspective, and Emphasis of Justice Breyer

The U.S. Supreme Court is seen by some as one of the most elitist of institutions. But the author of this book believes that it should be used for the most democratic of purposes. The author contrasts active liberty--the freedom to actively participate in creating the shape and substance of governmental power, "sharing a nation's sovereign authority with its people--with the conservative ideal of negative liberty, protecting the public from the government. Both have their place, he says, but the the judicial interpretive decision-making process needs a greater emphasis on how a bill fosters active liberty. "The people must have room to decide and leeway to make mistakes, " the author writes. If it is clear what the legislative intent was in a particular case, the court should seek to follow it, the author says. If it is not clear what the enacting legislative body sought to accomplish, then the court should adopt a "reasonable legislator" standard to seek to determine what was meant. The author finds this far preferable to the approach advocated by others--the unnamed Justices John Scalia and Clarence Thomas, for instance--who seek to discern solely from the text what was meant. Legislators who write the bills may not be aware of the principles of statutory construction, the author writes, and so the court should not seek to enforce them over clear legislative intent. "And in the real world," the author writes, institutions and methods of interpretation must be designed in a way such that the form of liberty is both sustainable over time and capable of translating the people's will into sound policies." The author approvingly quotes Judge Learned Hand as saying that the "spirit which seeks to understand the minds of other men and women," the "spirit which weighs their interest alongside its own without bias," is the "spirit of liberty itself." He quotes Justice Louis Brandeis as saying "we must ever be on our guard lest that we elect our prejudices into legal principles." Brandeis also wanted a judge to avoid being "wooden in uncritically resting on formulas in assuming the familiar to be the necessary, in not realizing that any problem can be solved if only one principle is involved but that ultimately all controversies of importance involve if not a conflict at least an interplay of principles." The author believes the principle of democratic participation in government is eternal. "(T)he framers...wrote a Constitution that begins with the words "We the People." The words are not "we the people of 1787." Rather their words, legal scholar Alexander Meiklejohn tells us, mean that "it is agreed, and with every passing moment it is re-agreed, that the people of the United States shall be self-governed." A self-governed people, the author makes clear, are free to go beyond the precise meanings their controlling document had at the time of its adoption over 200 years ago. "In sum," the author states, "our constitution has been a ques

Interpreting the constitution's grand principles

"Active Liberty" articulates a cohert framework for interpreting the constitution as a Supreme Court Justice, responding to the neo-conservative "originalist" and "textualist" approaches. In it, Justice Breyer shows how he approaches his job by identifying the core principles the constitution embodies without being stuck in the 1700s nor moving from their grand intent. Breyer's approach is founded on the idea that the constitution was often intended to provide grand, aspirational principles. He notes the overlooked, but obvious, issue that most of the "interesting" cases that arrive in the Supreme Court are questions that turn on the relative weights of different parts of the Constitution, not simply in understanding one part ... and thus is the hard part of interpretation. Active Liberty provides guidelines for that interpretation.

One of the best legal minds in the country

Breyer's judicial philosophy and method of expressing it are logical, relevant, and unassailably critical to the success of the American republic. Whether or not your agree with his philosophy, this book is a revealing and mandatory read for anyone wishing to navigate future Supreme Court decisions and their impact on our collective future.

Active Liberty and the Reasonable Legislator

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.