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Active Liberty: Interpreting Our Democratic Constitution

3.38  ·  Rating Details  ·  473 Ratings  ·  53 Reviews
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 t ...more
ebook, 176 pages
Published December 18th 2007 by Vintage (first published 2005)
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Brad Lyerla
Oct 02, 2015 Brad Lyerla rated it really liked it  ·  review of another edition
In ACTIVE LIBERTY, Supreme Court Associate Justice Stephen Breyer demonstrates that there is a principled and distinguished alternative to "originalism" as a method for interpreting our constitution. This method, which he calls Active Liberty, avoids some of the problems that seem to be inherent to originalism.

His point of departure is to make a distinction between 'modern liberty' and 'active liberty'. Modern liberty is freedom from government coercion. Active liberty is the freedom to partici
Aug 12, 2007 Mark rated it it was amazing  ·  review of another edition
Shelves: political
Describes the concepts of the personal rights of active liberty (participation in government) and passive liberty (freedom from government interference), and discusses how judicial decision making can be influenced by taking these rights into account. This book is short and repetitive, but the fundamental importance of these rights in American society outweighs those shortcomings.
Mar 19, 2015 David rated it really liked it  ·  review of another edition
Food for thought for an Originalist like me.
Lucid and thought-provoking, it gives the reader valuable insight into the differences of how "liberals" and "conservatives" process the clauses of the Constitution. In his approach, Breyer for the most part is apolitical, and as a Justice has the repsonsibility to be so. But the explanations of his opinions lurch dramatically into the political realm, especially in privacy and speech issues.
A great read regardless of your own political leanings. Fair-
Nov 19, 2014 Phillip rated it it was ok  ·  review of another edition
This is a short(ish) book, but I found it hard to follow in some parts and repetitive in others. Granted, Justice Breyer posits his jurisprudence, one found on promoting the democratic purposes of constitutional government. I understood what he was saying (and it nice of him to use actual examples in the book, e.g., affirmative action, federalism, etc.), but I still found it more general language than specific. He does attempt to "take down" the so-called originalism school of thought, but it's ...more
Lezlee Hays
Jul 16, 2010 Lezlee Hays rated it really liked it  ·  review of another edition
Breyer is my favorite justice, so I'm slightly biased, but this book is really apolitical. He is only trying to explain the judicial process and the importance of interpretations of the constitution. I think a lot of people truly misunderstand the idea of 'activist judges' or the idea that judges appointed under a republican administration are going to be "conservative" or under a democratic administration are going to be "liberal". It doesn't quite work that way at all. "conservative" and "libe ...more
A call to arms to participate in government, if only on the most basic of levels. An explanation of the Supreme Court's job. A look into how Breyer himself sees the Law's purpose and how he interprets statutes and America's Constitution.

Occasionally opaque, Breyer's theories are easier to digest when he speaks them (they're available openly on YouTube). But I enjoyed his analysis and explanations. His critique of textualism and originalism in this book may be the most valuable.
Oct 08, 2007 Adrienne rated it really liked it  ·  review of another edition
Recommends it for: Those interested in theories of statutory and constitutional interpretation
If you read a Matter of Interpretation, you should read this book. This book is a short exposition of Justice Breyer's theory of statutory and constitutional interpretation, and that, quite simply, is what makes it valuable.
Jacob Lines
Mar 12, 2015 Jacob Lines rated it liked it  ·  review of another edition
Shelves: law
Justice Breyer is a brilliant legal scholar. This book is about taking “active liberty” more seriously. He defines this term as the people’s right to an active and constant participation in collective power and argues that “courts should take greater account of the Constitution’s democratic nature when they interpret constitutional and statutory texts.” Breyer acknowledges that this awareness should lead judges to be modest in their role, not being “too sure” of their own judgments, but also fin ...more
Tom Sulcer
Why is a Supreme Court justice writing a book? Because he's trying to influence public opinion. And it's one more sign that the Supreme Court has become politicized, making essentially legislative decisions (Roe v. Wade, Brown v. Board of Education, and so forth). A glaring example of politicization was the Court's Bush v. Gore decision in which the Court essentially declared the winner.

The Framers never intended for nine unelected people to have such sweeping power. They're unaccountable to vot
Jul 29, 2011 Joey rated it liked it  ·  review of another edition
Although Active Liberty ably makes the case that literalist methods of statutory and constitutional interpretation suffer from various shortcomings, it fails to convincingly articulate why justices should primarily emphasize the democratic nature of the Constitution in their decisions, potentially at the expense of other important considerations. Justice Breyer could have been more persuasive had he, first, explained why active liberty is a more important judicial polestar than, say, separation- ...more
Jan 03, 2009 Brian rated it liked it  ·  review of another edition
Shelves: law, non-fiction
Justice Breyer's central point in this book is that the Constitution protects both "modern," or negative, liberty--freedom from government infringement of individual rights--and "ancient," or active, liberty--an individual's right to participate in the democratic process. Breyer argues that both negative and active liberty are essential to the proper functioning of the government, and that courts should decide cases with these dual forms of liberty in mind.

Breyer's focus on active liberty is bot
Apr 27, 2009 Mick rated it liked it  ·  review of another edition
The next time I read about a decision by the Supremes that leaves me scratching my head and wondering, "What were they thinking?", I've at least got this little book by Justice Breyer to give me one or two clues. ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION is a blueprint explaining the components of judicial activism, and pleads its argument against what Breyer terms Constitutional "textualists."

The foundation of Breyer's premise has to do with the democratic compatibility of "anci
Jul 21, 2011 Will rated it liked it  ·  review of another edition
The US Supreme Court, though ostensibly apolitical, is largely a product of the political—and popular climate—present in the United States at a given time. Justices are appointed by the President who, in trying to move forward his/her—and his/her party’s—agenda, will undoubtedly consider a prospective appointee’s jurisprudence and judicial record for suspected sympathies and beliefs. But, has it always been this way? In his book, The Nine, Jeffrey Toobin suggests that, over the past thirty years ...more
Kevin Black
Active Liberty: Interpreting Our Democratic Constitution (Breyer)
I'm still in the tail end of this book but have read and thought about the main exposition of his ideas in the first half. I'd say I am glad to have read this, and I think it clarifies for me how Breyer and those who agree with his relatively activist constitutional interpretation can do so without being motivated entirely by contempt for the electorate and the legislature. Still, I am not persuaded by his main point. I think his a
Sean Rosenthal
I wrote a critique reviewing the book here: I also posted it on Amazon.

In Justice Stephen Breyer's book Active Liberty, he argues that the Constitution created a federal government embodying the principles of democracy and, as such, judges should defer to Congress as well as state governments as the representative bodies of the people unless they intrude on narrow fundamental rights. Though acknowledging negative r
Jan 14, 2014 Rusty rated it really liked it  ·  review of another edition
This is a good primer on how the U.S.Constitution should work on behalf of the people. Justice Breyer defines "Active liberty" as "a sharing of a nation's sovereign authority among its people." After briefly demonstrating the history of active liberty, he then addressed its application in cases regarding speech, federalism, privacy, affirmative action, administrative law, and statutory law. While Justice Breyer means for this book to be read by the layman, it should also be read slowly and thoug ...more
Apr 13, 2009 Bethany rated it did not like it  ·  review of another edition
Shelves: non-fiction
I really did read this with an open mind, I swear. I wanted to see how the more liberal 'evolving Constitution' justices explained their jurisprudence. But this was a real snore. Just not well written, no colorful examples, no personality really of any kind. In person Breyer seems pretty fun, but there's no evidence of that in here. Not to mention that his jurisprudence makes no sense to me still - he's trying to encourage democracy by ruling the way he does? Really? By taking abortion and capit ...more
Apr 06, 2010 Alina rated it liked it  ·  review of another edition
At first, this book seems more confusing than helpful -- theoretical vagaries are not very enlightening. However, Supreme Court Justice Breyer really gets going about halfway through, when he starts using extensive examples from previous court decisions, applicable cases reviewed elsewhere, etc. Then, he makes his points and makes them well. In particular, the chapter on Administrative Law (most pertinent to my interests) is excellent in regards to providing clear concrete cases to provide instr ...more
Jan 31, 2010 Kl rated it it was ok  ·  review of another edition
I didn't really like this book. He talked too much about our "democracy" when he should know that we are a Constitutional Republic. He also talked a lot about the Supreme Court interpreting the Constitution. No where in the Constitution is the SC granted the power to interpret. I was often left wondering if he has even read the document he talks so much about???
As Thomas Jefferson said, "The judiciary if given too much power might ruin our republic, and destroy our rights." Mr. Breyer definitely
Jan Stanton
Sep 23, 2015 Jan Stanton rated it really liked it  ·  review of another edition
I am definitely going to re-read this book. Very powerful little book!
Dec 24, 2010 Maggie rated it it was amazing  ·  review of another edition
Shelves: non-fiction
excellent. it will take a few listens for me to gather together all of the richness presented by breyer but it will be time well spent. and as a 65 year old, absorbing these ideas beats doing crossword puzzles to keep my aging brain agile. his views help me to re-invest in hope that "truth will out". for that alone i am glad to have listened to this audio book. in addition, his ideas provides me with a clarity i was seeking with regards to the supreme court.
Jun 05, 2009 Jason rated it really liked it  ·  review of another edition
an alternative view of judicial interpretation, in contrast to the strict textualist Scalia view. liked the focus on looking to how a given law/controversy should be interpreted in light of the constitutional purpose of promoting an active democracy on the individual level - in addition to the usual focus on the "negative" liberty of the bill of rights. Breyer thinks we need to look at both types of liberty and makes a persuasive case in favor of his view.
May 12, 2008 Christopher rated it really liked it  ·  review of another edition
Justice Breyer does a good job of laying out the case for a living constitution, though I he could have delved a bit deeper into the examples. It is a great intellectual discussion rather than an argument, giving the basic ground rules and simple examples.

The workability of the theory he lays out, though, depends on how well his theory holds up in difficult and intricate cases. That would have made it more convincing and doubtlessly more engrossing.
Sep 01, 2012 Grant rated it really liked it  ·  review of another edition
Even though it's a fairly short book, it's a little hard to get through this book. However, it gives a great framework for why liberals choose to act they way they do, and gives the basis for understanding the philosophy of the activist liberal justices. I would say that his arguments should be based more on a fundamental way of thinking and why that process is superior to other philosophies held by other justices.
Mike Horton
Nov 21, 2012 Mike Horton rated it really liked it  ·  review of another edition
Good book by a current SCOTUS Justice (Breyer) who provides his theories on the role of the judiciary in our governmental process. I must admit that I've not always agreed with Breyer (he's a little to the left of me, but not by much), but I enjoy his judicial philosophy as defined here. A must-read for anyone interested in the study of American Law.
Sep 25, 2011 Eli rated it it was amazing  ·  review of another edition
Shelves: constitution
Justice Breyer is truly a 21st century jurist. This book showcases his brilliance and ability to consider American law from a whole new perspective. Not an easy read, and requires a careful study but well worth the time of anyone interested in American legal development.
Jul 26, 2011 Ronald rated it it was ok  ·  review of another edition
Disappointing on many levels. Doesn't hold a candle to Judge Bork's many works. I'll summarize "active" liberty for you: We're the judges, we know best, we need more power, and the "negative" liberty of the Founding Fathers is holding us back. Downright scary in some parts.
Sep 25, 2010 Sean rated it it was amazing  ·  review of another edition
SCOTUS Justice Stephen Breyer continues a tradition of essentially Libertarian interpretations of the US Constitution, contributing his analysis of precedent and meaning to the broader body of interpretations about Constitutional Law
Donald Scarinci
Oct 27, 2015 Donald Scarinci rated it really liked it  ·  review of another edition
It's justice Breyer! Nothing he writes is bad. This is a terrific little book explaining the Justices concept of living constitutionalism and is key to understanding his approach to interpreting the constitution.
Aug 19, 2007 Gil rated it really liked it  ·  review of another edition
Recommends it for: Legal Eagles
This book is awesome. I really liked a lot of the constitutional discussion that Breyer details in this book--especially his views on civil rights and liberties. Highly recommended. It is a really short read.
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Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by Democratic President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court.

Following a clerkship with Supreme Court Associate Justice Arthur Goldberg in 1964, Breyer became well-known as a law professor and lecturer
More about Stephen G. Breyer...

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