Active Liberty: Interpreting Our Democratic Constitution | Stephen Breyer

Active Liberty: Interpreting Our Democratic Constitution | Stephen Breyer | Short volume which is a reworking of a series of lectures

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Active Liberty: In...

	Active Liberty: Interpreting Our Democratic Constitution Stephen Breyer Vintage, 2006 - 176 pages average customer review:based on 35 reviews view larger image
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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 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 Constitution?s 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.

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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 he can strike down any law he wants as promoting individual liberty. How does he decide? To detractors the answer is obvious... he substitutes constitutional law with his own personal preference. Don't take my word for it though, read the book and decide for yourself. Is he really interpreting the constitution or just legislating from the bench?

Regardless of the holes and inconsistencies this book is still a great read. It's clear, concise, and Breyer lays it out there with an intellectual honesty you have to respect even if you don't embrace. Definitely read Scalia's Matter of Interpretation to get another approach used by Justices on the Supreme Court.

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Short volume which is a reworking of a series of lectures

I had the pleasure of hearing Associate Supreme Court Justice Stephen Breyer speak. He's an engaging speaker, warm and funny. In preparation for his appearance I read his latest book, Active Liberty, a short volume which is a reworking of a series of lectures he gave at Harvard in 2001. In it, Breyer explains the concept of liberty and its responsibilities and his belief in the Constitution as a living, changing document. He also explains how the Supreme Court works, how it should work and how people whose opinions are sometimes diametrically opposed can still work together in a civilized manner, retaining respect for one another. The book reads like a lecture and the prose is not particularly colorful, yet this is a valuable book and the author presents a number of opinions that are surprising given his perceived political leanings.

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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 Amendment, the Equal Protection Clause, and Federalism.... I could go on and on. The point is what Bryer refers to as judicial restraint is actually judicial negligence, because it is negligent for a judge not to do his solemn duty: uphold the constitution. Ironically, Bryer's view of an essentially democratic constitution contradicts his own judicial opinions. As noted above, Bryer has refused to protect enumerated rights of the constitution, often citing that he is encouraging the public's right to choose - I'd point out that oppression (denying fundamental rights) is not a right. But when it comes to unenumerated rights, Bryer has no problem taking those out of the political process. But wait, you say, I thought Bryer was suppose to encourage democracy; how does this fit in with his view of active liberty? The answer is it doesn't. Bryer has made up a method of interpretation that justifies some of his illogical decisions, but not all. To wit, abortion. An article in the Washington Post by Roger Pilon argues persuasively that abortion should be left to political branches (I've summarized it on wikipedia under Roger Pilon). Yet Breyer feels that concerning abortion, the constitution somehow becomes not what HE (emphasis added) claims it to be: essentially democratic, but the opposite, anti-democratic. I'm not arguing that abortion isn't protected by the constitution, but I am arguing that Bryer, who asserts that the constitution is essentially democratic, is a hypocrite when he asserts the right to choose to have an abortion is out of the political process.

I gave this book four stars because I think it is important for Americans to read and try to understand a very influential judge.

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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 ambiguous sections. As Breyer notes, textualism lacks clear Constitutional sanction, is far from transparent, does not guarantee objectivity (its main selling point), and ends up relying on consequentialist reasoning of its own.

Much of the argument of "Active Liberty" revolves around the distinction between so-called Ancient Liberty (the right to participate in government) and so-called Modern Liberty (the right to be free from government coercion). Both values are reflected in the Constitution, and Breyer's effort to strike a balance between them is the most interesting part of his book. While his focus is too narrow for "Active Liberty" to be a major contribution to popular understanding of our legal system, it is a welcome counterpoint -- both jurisprudential and stylistic -- to Scalia's bombastic "A Matter of Interpretation," which dealt with the same issue.

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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 such tensions are his view of the real bread-and-butter Supreme Court legal work. He freely admits to the subjectiveness which his viewpoint influences Supreme Court decisions, and points out that more textual (objective, narrower) approaches also contain subjectivity. True enough. But narrower and more objective approaches deal with Constitutional terms like "due process," "just compensation," and "public use." These ought to busy our justices enough without being concerned with guessing future outcomes or majority wishes, or other matters best handled by the lawmaking arm of our government. Mr. Justice Breyer's approach at times seems like an excuse to be less exact on formal decisions - justified inconsistency [the last sentence is merely an opinion by this reviewer!]

Nevertheless, where else can one pick up a book by a sitting Supreme Court justice which explains his/her thinking process? Especially if that book is short enough, and usually worded simply enough to be read easily and relatively quickly. Buy the book, or check it out from the library, and this will indeed show decent respect for the author.

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reviews: page 1, 2, 3, 4, 5, 6, 7

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