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Active Liberty: Interpreting Our Democratic Constitution


Active Liberty: Interpreting Our Democratic Constitution Cover

ISBN13: 9780307274946
ISBN10: 0307274942
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Publisher Comments:

A brilliant new approach to the Constitution and courts of the United States by Supreme Court Justice Stephen Breyer.For Justice Breyer, the Constitutions 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 Constitutions 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.


This book, based on the Tanner lectures on Human Values that Justice Stephen Breyer delivered at Harvard University in November 2004, 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.

About the Author

Stephen Breyer is a Justice of the Supreme Court of the United States. He is a resident of Cambridge, Massachusetts, and Washington, D.C.

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OneMansView, July 24, 2010 (view all comments by OneMansView)
Interpretation vs. literalism (3.75*s)

Judge Breyer is obviously responding to Constitutional “literalists” in this short work, among them, judges Scalia and Thomas. He argues that the Constitution is a “framework” for self-governance that supports an ever evolving governance construct based on the will of the people as expressed through their legislators and legislation and associated governmental bodies. When deciding modern legal situations, Supreme Court justices must therefore “interpret” statutes and the Constitution in terms of the will and purposes of the people taking into account the “consequences” of their decisions, as well as language, precedent, history, etc. “Textualism,” a version of literalism, is an inadequate approach because the Constitution is not an extensive, precisely worded document that literally points to particular decisions. He also calls for judicial modesty in deferring to the will of the people, while literalists are far more inclined to supply meanings based on the alleged “original intent” of the Founders.

Judge Breyer regards his approach as consistent with “ancient” liberty, as opposed to “modern” liberty. Ancient liberty emphasized the collective efforts of citizens in self-governance. However, he recognizes the possibilities of coercion when participation is expected, if not required; hence modern liberty – a liberty that protects one’s right to be left alone. He contends that the Framers constructed a Constitutional order that expected citizen participation and created the liberty to do so.

The book is strongest in the general ideas concerning judicial approach. The interpretative approach is a broad-based approach, in terms of what factors are considered. The literalist approach seems self-limiting and actually more prone to subjectivity in that judges often create precise meaning from vaguely worded language. Less successful are the examples given that supposedly demonstrate the success of the interpretive approach in such areas as free speech, federalism, privacy, affirmative action, statutory interpretation, and judicial review of administrative action. For one, the descriptions border on legalese, that is, they are difficult to follow, and secondly the positions defended at times seem peculiarly anti-democratic. It is bizarre that a CA statute that permitted a consumer to challenge Nike’s claim of observing worker rights is struck down, with the author’s agreement, due to Nike’s right to persuade the public - strange indeed.

One could disagree with the judge concerning the democratic intent of the Framers. Democracy was pretty much a forbidden word among the framers. At best, they created a highly constrained democracy that excluded the participation, by Constitutional stipulation, of a large majority of Americans. As far as desiring citizen participation - elites throughout American history have generally feared collective actions originating from below, such as labor unions, and usually enlist the state in suppressing such movements. The Populists in their early years were defeated through intimidation and blatant voter fraud. The author, most curiously, does not mention the decision in the late nineteenth century that recognized corporations as legal persons, a truly monumental decision with ramifications throughout our society, especially in the political process. Nike et al are not persons, yet they trump people.

His arguments against so-called strict constructionism are compelling. The original intent of the Framers of over two centuries ago, even if it could be determined and it usually cannot, is only marginally relevant in a world that has drastically changed since 1787. Without providing an analysis of Supreme Ct decisions through the years, it is still safe to say that the Supreme Ct has been a conservative, even backward-looking, force in our society, often favoring elites. It is hardly certain that judges of Breyer’s disposition will have much on an impact on that history. But it is interesting to see the little in-fight on the Supreme Ct.
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Product Details

Breyer, Stephen
Vintage Books USA
Judicial process -- United States.
Law | Constitutional Law
Edition Description:
Trade paper
Publication Date:
Grade Level:
7.98x5.32x.45 in. .44 lbs.

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Business » Business Law
History and Social Science » Law » Constitutional Law
History and Social Science » Law » General

Active Liberty: Interpreting Our Democratic Constitution New Trade Paper
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Product details 176 pages Vintage Books USA - English 9780307274946 Reviews:
"Synopsis" by , This book, based on the Tanner lectures on Human Values that Justice Stephen Breyer delivered at Harvard University in November 2004, 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.

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