Active Liberty: Interpreting Our Democratic Constitution |  | Author: Stephen Breyer
Publisher: Vintage
Category: Book
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Rating:  39 reviews
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Media: Paperback
Pages: 176
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Dimensions (in): 8 x 5.1 x 0.5
ISBN: 0307274942
Dewey Decimal Number: 342
EAN: 9780307274946
ASIN: 0307274942
Publication Date: October 10, 2006
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Product Description
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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Showing reviews 1-5 of 39
 Active Liberty and the Reasonable Legislator October 5, 2005
James Carroule (Michigan, USA)
24 out of 27 found this review helpful
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.
One of the best legal minds in the country November 2, 2005
D. Pakman (New York, NY)
17 out of 22 found this review helpful
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.
The Pro-Democracy Approach, Perspective, and Emphasis of Justice Breyer April 2, 2007
Mark B. Cohen (Philadelphia,PA USA)
5 out of 7 found this review helpful
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 quest for workable government, workable democratic government, workable democratic government protective of individual personal liberty. Our central commitment has been to "government of the people, by the people, and for the people....(T)his constitutional understanding helps interpret the Constitution--in a way that helps to resolve problems related to modern government."
The author takes pride in the constructive development of federal and state constitutions over time. He notes the radical Pennsylvania constitution of the late 1700's "that abolished the position of governor, substituting a twelve-member elected council; created a unicameral legislature with one year terms; imposed four year term limits; insisted that all public decision-making take place in public; and provided for a board of censors, a kind of statewide grand jury with separately elected members who would investigate all actions by the legislature and report to the public...."
But he notes that this "closer to Athenian version of democracy" soon failed. "Pennsylvanians found," he said, "that their government enacted conflicting policies, reflecting the vagaries of shifting public opinion, that through debt repudiation it had produced an insecure climate for business, and that those within government--a continuously changing group, were often at war with one another."
The author finds modern appplications of the principle of active liberty in six modern areas: speech, federalism, privacy, affirmative action, statutory interpretation,and adminstrative law. These discussions are perhaps briefer than they ideally would be, but they suffice to get the major point across.
Speech is an extremely broad topic: it includes warranties on labels, disclosure of information in securities laws and consumer protection laws, health laws forbidding tobacco advertising to children, discrimination laws banning statements of intent to discriminate, communication laws requiring cable broadcasters to provide network access, and campaign finance laws restricting citizen contributions to candidates. Different applications require different remedies: a one size fits all rule of speech can never be restricted in any cirucmstance would greatly limit many worthwhile democratic purposes.
"My argument," the author concludes after a detailed discussion of cases in numerous areas touching on free speech, "is that,in applying First Amendment presumptions, we must distinguish among contexts, and forms of speech. Reference to basic constitutional principles can help generate the relevant distinctions. And reference back to at least one general purpose, active liberty, helps both to generate proper distinctions and also to properly apply the distinctions generated. The active liberty reference helps us to preserve speech that is essential to our democratic form of government, while simultaneously permitting the law to deal effecitve with such modern regulatory problems as campaign finance and product or workplace safety."
The author's discussion of federalism embraces the regulation of toxic chemicals, the regulation of gun purchases, the ability of the federal government to commandeer local officials to enforce federal laws, improper state use of the intellectual property of others, toxic wastes,
tax assessments, Congress' Commerce clause powers relating to gun possession and violence against women, and issues of the "dormant Commerce Clause."
The author believes that more Congressional oversight and action is needed in these areas. "I am pointing to the Constitution's democratic objectives, explaining the complexity involved in attaining these objectives when modern technology is at issue, noting the related tension between these objectives and the recent cases, and suggesting that proper resolution of many such federalism issues cannot be left to the judiciary alone. There are likely better ways."
The author defines privacy to mean "a person's pwer to control what others can come to know about him or her." Privacy issues include trespass, wiretapping, eavesdropping, search and seizure statutes, personal data protection, video camera regulation, regulation of scanners and interceptors, customer purchasing profiles, medical records protection, genetic makeup of individuals, cell phone converstations, thermal imaging devices, and the meaning of reasonable expectations of privacy.
"The privacy example," the author writes, "...warns against adopting an overly rigid method of interpreting the Constitution--placing weight upon eighteenth century details to the point at which it becomes difficult for a twnety-first century court to apply the document's underlying values. At a minimum it suggests that courts, in determining the breadth of a constitutional holding, should look at the effect of a holding of a certain breadth on the ongoing policy-creating process. They should distinguish for these purposes between, say the "eavesdropping" and the "thermal imaging" kinds of cases.
"The example also makes it clear," the author concludes, that it is misleading to contrast "practical" and "legal" judicial concerns. In exercising caution, a judge is not deserting the judicial role of law interpreter in order to be practical. Rather, the judge is following the law, interpreting the Consitution in light of its own practical concern for an active liberty that is itself a practical process. That is to say, the Constitution authorizes courts to proceed "practically" when they examine new laws in light of the Constitution's enduring values."
In discussing affirmative action, the author focuses intently on the 2003 case that renewed, it, redefined it, and in different wasys restricted and expanded it. The Court re-affirmed that the Constitution could take account a a person's color in remedying past discrimination or achieving other worthwhile social objectives. Breyer approvingly quotes Justice Ruth Bader Ginsburg--"Actions designed to burden groups long denied full citizenship stature are not so sensibly ranked with measures taken to hasten the day when entrenched discrimination and its after effects have been extirpated"--and Judge John Minor Wisdom--"Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination."
"When faced with one interpretation of the Equal Protection Clause that, through efforts to include, would facilitate the functioning of democracy and a different interpretation of the Equal Protection Clause that, trhough perceived exclusion, might impede the functioning of democracy, is it surprising that the Court majority chose the former?....(I)t is not surprising that that the Court interpreted the Equal Protection Clause in a way that diminishes the risk of serious racial division--a division that exclusion from elite educational institutions would aggravate....Sometimes reference to active liberty can help a court choose between competing interpretations of constitutional provisions that, on their face, seem based upon other values. Gutter shows how this is so."
The author's examination of statutory interpretation "contrasts a literal text based approach with an approach that places more emphasis on statutory purpose and congressional intent. It illustrates why judges should pay primary attention to a statute's purpose in difficult cases of interpretation in which language is not clear. It shows how overemphasis on text can lead courts astray, divorcing law from life--indeed, creating law that harms those whom Congress meant to help. And it explains why a purposive approach is more consistent with the framework for a "delegated democracy" that the Constitution creates."
This chapter uses cases dealing with the Foreign Services Immunities Act, the Federal Arbitration Act, and the federal habeas corpus statute as examples. The author favors the use of a "reasonable legislator" standard
to guide the courts when the leislative intent of a given statute as related to a particular problem is not clear because this standard "helps statutes mjatch their means to their overall policy objectives, a match that helps translate the popular will into sound policy. An overly literal reading of a text can too often stand in the way."
His final example of the value of the concept of active liberty lies in administrative law. "To achieve our democratically chosen ends in a modern populous society requires some amount of administration, involving administrative, not not democratic, decision-making. To achieve these same ends in a technologically advanced society requires expertise....Without delegation to experts, an inexpert public, possessing the will, would lack the way. The public understands this fact....As classically conceived, administrative law helpos to implement the legislature's choice of when and how to delegate decision-making to administrators and experts."
The author focuses upon the principle of judicial "deference" to agency interpretation of statutes, a principle that transfers the interpretive function from the judicial branch to the executive branch. Chevron USA v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) is well-dissected for this analysis. The author favors treating the judicial deference this holding requires "not as an absolute rule, but as a rule of thumb."
The author finds that "In all likelihood a hypothetical reasonable member of Congress would have decided the delegation/deference question so as to help the statute work better to achieve its ends. And these ends usually reflect the general desires of the public....Active liberty provides a democratic rationale for better functioning administrative law."
In summarizing his argument after completing his examples, the author makes clear that "I am not arguing for a new theory of constitutional law....I have argued for a greater awareness of and emphasis upon, the Constitution's democratic imperative....(to)help Americans remain true to the past while better resolving their contemporary problems of government through law."
In the final section of his book, entitled "A Serious Objection," the author takes on the "textualists" and "originalists"--colleagues and scholars generally of the radically conservative persuasion who would strongly dispute his blandly presented views. For those who find conflict essential to understanding differences of ideology and nuance, this is the best section of the book, even though it carefully avoids mentioning the names of the author's adversaries or engaging in any personal attacks on them.
"Why do I point out the uncertainties, in close cases, of linguistic structure, of canons of interpretations, and of history," the author asks rhetorically. "Because these difficulties mean that the "textualist," "originalist," and "literalist" approaches themselves possess inherently subjective elements. Which linguistic characteristics are determinative? Which canons shall we choose? Which historical account shall we use? Which tradition shall we apply? And how does that history or tradition apply now?....I do not believe that textualist or originalist methods of interpretation are more more likely to produce clear workable legal rules....Nor is clarity exclusively promoted through use of rules....(I)nsistence on clear rules can exact a high constitutional price...."
The author concludes that "the Constitution is not a document designed to solve the problems of a community at any level--local, state, or national. Rather it is a document that trusts people to solve these problems themselves. And it creates a framework for a government that will help them do so. That framework forsees democratically determined solutions, protective of the individual's basic civil liberties. It assures each individual that the law will treat him or her with equal respect. It seeks a form of democratic government that will prove workable over time."
The author's book can be read on different levels: as a brief overview of a moderately liberal justice's view of constitutional law, or as a detailed outline of the same. Reading it the former way can be done at one sitting, but agonizing over the detailed meanings of the many fine distinctions the author makes can take a long time.
This is a great book for those involved in the legislative process at state, local or federal levels, and those seeking to better teach or learn the law. The author writes not a call to arms, but a plea for an awakening of a new understanding. Justice Breyer lacks the outspokenness of Justice William O'Douglas, and the bridgebuilding issue-oriented passion of Justice William Brennan. But he has a zeal for the enabling of an active public role for the citizens of our country, and this book places that zeal in the context of how our Constitution functions and should function.
Interpreting the constitution's grand principles December 22, 2005
W. Neuhauser (Yamhill, OR)
6 out of 9 found this review helpful
"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.
An important read February 24, 2006
Nancy J. Richmond (Shipshewana, IN United States)
1 out of 2 found this review helpful
This is a very readable book of Justice Breyer's views how the Supreme Court views cases in light of the Constitution. I chose to read this book after watching Justice Breyer on Larry King's show one night. I found Justice Breyer to be very articulate and interesting. This book is an important read for those who want to know how the Court selects caess to hear and how the Constitution is applied to today's issues.
Showing reviews 1-5 of 39
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