Active Liberty: Interpreting Our Democratic Constitution Paperback – October 10, 2006

Justice Stephen Breyer's Active Liberty presents a Democratic Interpretation of the Constitution. In 2005, Alfred A. Knopf published a book by U.S. Supreme Court Justice Stephen Breyer that has conservatives spinning on their heads: Active Liberty: Interpreting Our Democratic Constitution. In it, Stephen Breyer explains the need for keeping democracy in mind when deciding court cases brought forth on the grounds of the U.S. Constitution. It is his view on the necessary pattern for deciding many constitutional cases.For some readers, this book will be an explanation for Associate Justice Breyer's already-known theme of the "living Constitution," and in that, the book is an accomplishment. For other readers, this will be an introduction to situations in which constitutional issues become complicated, but can still be addressed in a way that retains the good faith objectives behind the creation of the Constitution. Either way, the book will also represent how Breyer can retain his own impartiality through the paradigm he uses in interpreting the Constitution, why he chooses it, and why he does not choose something else.Justice Stephen Breyer has been accused of being an activist judge. He has been accused of legislating from the bench. In politics, an accusation is the same as guilt, even though judges are politicians that must retain their impartiality. When he espouses something that resembles the "living Constitution," he becomes an uncontrollable liberal, a wild-eyed radical, because he cannot just read the Constitution the way it was spelled out in a fair-reading, textual, and "originalist" way. That is the accusation at least. Undoubtedly, there must be something extraordinarily controversial about Breyer's view, regardless of the accuracy of such harsh criticism. The book is destined to provide what some readers already knew. But, it will present something else: context, in a straight-forward tone.Here is some context. In the book's introduction, Associate Justice Breyer explains that he has crafted his Active Liberty title from the writings of Benjamin Constant, the political philosopher from nearly 200 years ago, who has stated that there are two kinds of liberty that operate together: the "liberty of the ancients" and the "liberty of the moderns" (4). Too much of one or the other disturbs the equilibrium of democratic necessity.His "liberty of the ancients" is described in this book as where people join together in participatory democracy--to enact treaties, conduct foreign policy, and bring about the changes a people demand. He called it, "...citizen participation in the government's decision-making process" (57).He describes the "liberty of the moderns" as being what Constant referred to as civil liberty, in the protection of the minority from the tyranny of the majority. This is where the Bill of Rights defends individuals from executive policy and governmental interference. He says, "Traditional modern liberty" is "the individual's freedom from government restriction" (54). Breyer's interest in preserving individual freedom from government intrusion is transparent and his interest in it juxtaposes the negatives asserted by his political critics.However, the book seeks to pay a special attention to the former: the "liberty of the ancients," which represents an active participation in government's role. And because it requires an active role in government to be accomplished, he calls it "active liberty." The thesis of the book states how interpreting the U.S. Constitution should respect the democratic value of citizens taking a participatory role in governance. Breyer examines the need for "active liberty" by addressing six areas of application, where correctly interpreting the Constitution has assuredly changed over time: Speech, Federalism, Privacy, Affirmative Action, Statutory Interpretation, and Administrative Law.His section, "Privacy," for instance, depicts a landscape of recent evolvements brought on by computer manufacturing, software engineering, credit card systems, and the Internet which have the ability to control significant amounts of personal and private information in a nanosecond. Access to computers has moved so quickly in the U.S. since the turn of the century that to carry out the intentions of the 220-year-old Constitution in such a landscape requires a significant adaptation--like a musical composition (7). The passing of information on one person by another person is now monumental and requires state-of-the art guidelines to ensure democracy is preserved and respected. Therefore, a great deal of such necessary judicial interpretations of the Constitution depends upon "active liberty.""Active liberty," in Breyer's statutory function, means that the people must engage in a debate in order for a Judiciary to comply with the will of the people and respect democratic necessity in regard to any piece of legislation. It depends upon them. This is not judicial activism. This represents the will of the people to serve democracy.He points out that legislation expresses intent. Legislators are constantly bound to create laws with small cracks, since they are unable to see the results before the laws' passing. Judges must use their interpretative skills after the fact to examine the flawed outcomes when a party seeks a court's attention, to make democratic decisions, rather than superficially comply with the wording of a statute as an "originalist" would. Breyer isn't saying that the Constitution itself is flawed, but that putting on a pair of absolutist blinders to address constitutional issues will sometimes yield undemocratic interpretations. Remember, the whole purpose of the Judicial Branch is to interpret the law, but the outcome of a judiciary's interpretation represents a democratic quality of that decision.At least one case has been made more recently by another, former member of the Supreme Court, David Souter in a 2010 speech at Harvard University, who spoke of the Pentagon Papers case in which the justices of that 1973 decision found that it was impossible to interpret the freedom of speech by the First Amendment as an absolute when considering the rest of the document, that they felt that the problem is the wording of the Constitution. He called this a clear constitutional "clash."Justice Breyer concludes that the paradigm with which he views the Constitution is the same way judges often view statutes. He says that the difference between him and other judges is that justices of the Supreme Court are fixed to address statutory issues in constant supply, because they only address constitutional questions. The view of "active liberty" is therefore already carried out by virtually all judges by proxy alone, according to this book. Breyer's asserted method merely defines a thing that is already the norm for interpreting judicial statutes. If that's true, then it seems that his critics of the "living Constitution" are already behind. This is inadvertently a very aggressive form of criticism upon those who think they know better, those who purport that Justice Breyer is "legislating from the bench."Indeed, Active Liberty is a controversial book, and yet the language is so plain. Indeed, Mr. Breyer has written a short book with an easy structure that an eighth grader would understand. But it is up to the people to dare to choose to read it. Without credible books like this, people may as well send themselves backwards through time.Democracy is at stake. Americans need a government "of," "by," and "for the People." The Constitution was built for that purpose--to "promote the general welfare" and to "form a more perfect Union." The Judiciary is integral. It, too, is here to represent the people's democratic needs. According to Breyer, the founders expressed this. Constitutional issues are a bit more complex than the Constitution itself. Breyer makes this obvious.There is more to this book than its language, and this is the most one can hope to obtain from any work by any author. Perhaps it is therefore likely that Breyer is right about the Constitution's authors and the document itself. He treats his subject with the same high praise, does he not? He is essentially regarding the Constitution as he would a masterwork by a great composer: a work greater than the sum of its parts.Breyer feels that the Constitution is alive. It is up to him--and eight others--to make sure democracy is fostered through his care, because it is alive. He feels that task belongs as much to him as it does the president or the speaker of the house. If he's right, it is unfair to treat a justice with disdain for treating it with the same shared responsibility as a president or speaker. If it were not alive, there would be no need to decide anything, because all constitutional issues would be clear without Supreme Court justices.Copyright 2012, all rights reserved.

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.

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.

The book was beautifully written for the layperson. Even though I know little about technical legal concepts, it made little difference in my ability to understand Stephen Breyer's book. All in all, the book gives me greater confidence in the ability of others.

Active Liberty, de Stephen Breyer, é um libelo em prol da interpretação propositiva, um contraponto ao discurso acadêmico e a pratica judicial textualistas. Breyer é um jurista com sólida formação acadêmica, com mais de uma década ministrando aulas na Harvard Law School. Um humanista na Academia e no Judiciário, tanto na Corte de Apelação do Primeiro Circuito (1980/1994) quanto na Suprema Corte dos Estados Unidos, onde entrou em 1994, no lugar de Harry Blackmun. Dentre outras importantes passagens, do livro destaco a que se segue: “juízes devem prestar atenção primária ao propósito de uma lei em casos de difícil interpretação em que a linguagem não é clara.”