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Active Liberty: Interpreting Our Democratic Constitution
by: Stephen Breyer

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Binding: Hardcover
Dewey Decimal Number: 342.73
EAN: 9780307263131
ISBN: 0307263134
Label: Knopf
Manufacturer: Knopf
Number Of Items: 1
Number Of Pages: 176
Publication Date: September 13, 2005
Publisher: Knopf
Release Date: September 13, 2005
Sales Rank: 131331
Studio: Knopf

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Product Description:
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.

Customer Reviews

Average Rating: out of 5 stars

Rating:

- It wouldn't be nice to "dis'" a Supreme Court Justice
Justice Stephen Breyer, in this short book, clearly describes his judicial philosophy. "Short" is one of the aspects recommending "Active Liberty." The non-lawyer reader might find some of Justice Breyer's explanations a bit involved and sometimes less well defined, and the professional attorney reader might find the text a bit too easy, though some attorneys could take a lesson in brevity from this work! The author spends his book space explaining his view of the tension between "active liberty" and "modern liberty," between "textualism" and the previous two "liberties," and between "judicial modesty" and something he doesn't name particularly well ("judicial IMmodesty"?). He does this using six actual cases, and a few hypothetical examples.

Frankly, a discerning reader could wonder if much of those "tensions" mentioned above are made-up differences. Equally frankly, Justice Breyer tells us that ... Read More

Rating:

- Breyer v. Scalia
"Active Liberty" by Supreme Court Justice Steve Breyer is a well-written but very esoteric book about statutory and constitutional interpretation. Breyer defends a "consequentialist" approach to interpretation that would construe ambiguous laws so as to give real-world effect to their purposes (as revealed in text and structure, court precedents, and legislative and constitutional history). In the case of the Constitution, his approach would favor interpretations that promote popular participation in government, one of the Constitution's basic purposes.

Breyer writes clearly, his book is short, and the discussion draws on modern Supreme Court cases. Best of all, he provides a convincing alternative to fashionable "textualist" approaches to interpretation, which reject legislative history and would have courts stick to the "four corners" of texts, relying on hoary canons of interpretation to clarify ... Read More

Rating:

- A insightful look at a incoherent method of judicial interpretation
Justice Bryer is the most dangerous justice on the Supreme Court. Time and time again, Bryer fails to declare laws that are unconstitutional, unconstitutional. Among the justices, Bryer declares the fewest laws unconstitutional. Out of context, this means little, if anything; however, the reasons for his actions, as outlined in this book, should be terrifying to any American that cherishes individual liberty. As other reviewers have noted, Bryer believes the constitution is essentially democratic, and his job as a judge is to encourage pragmatic decisions by the political branches. This view is inconsistent with the constitution, and Bryer's own opinions. It is inconsistent with the constitution because constitutional rights exist because those rights are not to be sacrificed to the majority. But Bryer's view requires exactly this. For example, Bryer has refused to uphold the Fourth Amendment, First Amendment, the Fifth ... Read More

Rating:

- Love It or Hate It, It's Honest and Interesting
With many ideological books, you will likely love them or hate them based on your own ideology. Unlike most ideological books, however, I think you will enjoy this one regardless of your own philosophy. Breyer clearly states his own method of constitutional interpretation and comes off as completely genuine.

Unfortunately he's often defending the indefensible. How in the world can sexual assault be considered interstate commerce? What about gun possession in a school zone as interstate commerce? Ludicrous! Yet Breyer clearly explains how he got there.

He tries to explain that he weighs the right of the people to govern themselves (democracy) against individual liberty. Sounds catchy. But wait... outside of a law that directly inhibits democracy doesn't that mean he can pick and choose which way to go on any other issue? He can uphold any law he wants by justifying it as democracy. Or ... Read More

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