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Active Liberty: Interpreting Our Democratic Constitutionby Stephen Breyer
"With this small but important book, Justice Stephen Breyer emerges as a leading theorist of constitutional interpretation on the highest bench in the land. At last there has appeared a direct and substantial challenge, within the Court, to the constitutional thought of Justice Antonin Scalia....The impact of President Bush's appointments notwithstanding, liberalism is finally, at the level of ideas, pushing back." Cass R. Sunstein, the New Republic (read the entire New Republic review)
Synopses & Reviews
This book, based on the Tanner lectures on Human Values that Justice Stephen Breyer delivered at Harvard University in November 2004, defines the term "active liberty" as a sharing of the nation's sovereign authority with its citizens. Regarding the Constitution as a guide for the application of basic American principles to a living and changing society rather than as an arsenal of rigid legal means for binding and restricting it, Justice Breyer argues that the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems.
Giving us examples of this approach in the areas of free speech, federalism, privacy, affirmative action, statutory interpretation, and administrative law, Justice Breyer states that courts should take greater account of the Constitution's democratic nature when they interpret constitutional and statutory texts. He also insists that the people, through participation in community life, can and must develop the experience necessary to govern their own affairs. His distinctive contribution to the federalism debate is his claim that deference to congressional power can actually promote democratic participation rather than thwart it. He argues convincingly that although Congress is not perfect, it has done a better job than either the executive or judicial branches at balancing the conflicting views of citizens across the nation, especially during times of national crisis. With a fine appreciation for complexity, Breyer reminds all Americans that Congress, rather than the courts, is the place to resolve policy disputes.
Active Liberty is a declaration of the first importance, made by a judge often regarded as one of the court's most brilliant members.
"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)" Publishers Weekly (Starred Review) (Copyright Reed Business Information, Inc.)
"Written in clear language for the lay reader-though backed by scholarly notes...recommended..." Library Journal
"While it deals seriously with 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...jurisprudence together in an analytically coherent framework..." Washington Post
"Laced with weighty references...Active Liberty is hardly a summer potboiler....Justice Breyer writes more like the Harvard professor he once was than a poet or polemicist." Wall Street Journal
"Active Liberty stands on its own as a provocative and well-argued case for reading the Constitution in light of the founders' greatest concern: giving the people the power to govern themselves." Milwaukie Journal Sentinel
Justice Breyer sees the Constitution as a guide for the application of basic American principles to a living and changing society rather than an arsenal of rigid legal means for binding and restricting it. In this important book, he makes clear why he thinks judges should place more emphasis on the consequences of legal decisions and less on literal readings of the law.
About the Author
Stephen Breyer is an associate justice of the United States Supreme Court. He is a resident of Cambridge, Massachusetts, and Washington, D.C.
Table of Contents
THE THEME: ACTIVE LIBERTY
A SERIOUS OBJECTION
What Our Readers Are Saying
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