Download PDF Active Liberty: Interpreting Our Democratic Constitution
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Active Liberty: Interpreting Our Democratic Constitution
Download PDF Active Liberty: Interpreting Our Democratic Constitution
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Review
“A brisk, lucid and energetic book, written with conviction and offering a central argument that is at once provocative and appealing. . . . Deserves a place of honor in national debates, now and in the future, about the role of the Supreme Court in American life.” –The New Republic“An important contribution. Active Liberty serves to clarify the stakes in contemporary disputes over the courts, rightly emphasizing areas of common ground alongside those of controversy.”–The Washington Post Book World“Provocative and well-argued.. . . . What we need more of, Active Liberty insists, is not activist judges but activist citizens.” –The New York Times“Active Liberty will likely influence not only public debate but also how lawyers craft their cases.” –The Wall Street Journal
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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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Product details
Paperback: 176 pages
Publisher: Vintage; 1 edition (October 10, 2006)
Language: English
ISBN-10: 0307274942
ISBN-13: 978-0307274946
Product Dimensions:
5.2 x 0.5 x 8 inches
Shipping Weight: 7.2 ounces (View shipping rates and policies)
Average Customer Review:
3.9 out of 5 stars
59 customer reviews
Amazon Best Sellers Rank:
#235,682 in Books (See Top 100 in Books)
In this short (135 narrative pages) book, Stephen Breyer, Associate Justice of the Supreme Court, sketches the method by which he interprets the Constitution of the United States. He also attempts to persuade the reader as to the superiority of this interpretive approach. The explanation is well presented. The persuasion is less so. Nonetheless, the thoughts of an active Supreme Court Justice are well worth reading. Justice Breyer premises his approach on the writings of a French political philosopher, Benjamin Constant who, writing in the early 1800s, compared what he called the "liberty of the ancients" with "modern liberty." Ancient liberty consists of the people sharing in the sovereign authority of the government, an "active liberty." Modern liberty consists of the individual's freedom to pursue his own interests free of improper government interference. Breyer focuses on the liberty of the ancients, which he believes requires judges to focus on whether the ultimate consequence of a particular interpretation furthers "the people's right to `an active and constant participation in collective power.'" The active liberty theme is applied to several present-day issues, including campaign finance reform, congressional redistricting, privacy in an age of technological information gathering, and affirmative action. It is also applied to statutory interpretation and to the interpretation of administrative law. The result is a cogent explanation of Justice Breyer's thinking with respect to these examples but it gives no compelling reason why anyone else should use this approach. In fact, the examples demonstrate the subjectivity inherent in a member of the judiciary making what are essentially legislative determinations. Breyer acknowledges that any method of interpretation involves subjectivity but states his belief that a consequence-oriented approach is less so than others. He attributes to the ancient Greek statesman Pericles, the following: "We do not say that the man who fails to participate in politics is a man who minds his own business. We say that he is a man who has no business here." It is the best line in the book. The brevity of Justice Breyer's book helps to make it an easy read. The complexity of the subject matter is buried in the endnotes, which I suspect, only sophisticated court-watchers will bother to examine
I listened to the unabridged audiobook. While Justice Breyer has an intellectually stimulating perspective on the constitution and the flexibility inherent in the document as we move through time, his narration takes away from the message. For a student of the law - regardless of your politics - the commentary by Justice Breyer on the flexible "living" constitution, and the rationale behind his analysis and interpretation of several key decisions are eye opening and thought provoking.
Other reviews have already covered the content of this book, especially the Washington Post review on this page. Whether you agree with Breyer's philosophy or not, this book is worth reading if you're interested in learning first-hand why people with Breyer's outlook oppose the textualist approach to Constitutional interpretation taken by Scalia and others.This book is really slim, and at $21 is overpriced (so buy it on Amazon with the offered discount!). It is based on a set of lectures Breyer gave, so don't expect a fleshed-out scholarly monograph. I would love to read Breyer's arguments and examples in a more well-developed form. Nevertheless, I think the book clearly lays out Breyer's ideas and conveys the broad structure of his argument. Most importantly, books like this give readers first-hand access to a Justice's thinking; this is can be more attractive than reading someone else's summary of a Justice's philosophy.
"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.
Great explanation of Breyer's judicial theories, and a fantastic explanation of Judicial Activism. Very interesting read.
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