Active Liberty: Interpreting Our Democratic Constitution

by Stephen G. Breyer

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.

Genres: Law, Nonfiction, Politics, History, Legal, Philosophy, Political Science

161 pages, Paperback

First published September 13, 2005

About the author

Stephen Gerald Breyer is a retired 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 at Harvard Law School starting in 1967. There he specialized in the area of administrative law, writing a number of influential text books that remain in use today. He held other prominent positions before being nominated for the Supreme Court, including special assistant to the United States Assistant Attorney General for Antitrust, and assistant special prosecutor on the Watergate Special Prosecution Force in 1973.

In his 2005 book Active Liberty, Breyer made his first attempt to systematically lay out his views on legal theory, arguing that the judiciary should seek to resolve issues so as best to encourage popular participation in governmental decisions.

Reviews

[Brad Lyerla · Rating 4 out of 5]

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’. (This distinction echoes Isaiah Berlin’s two conceptions of liberty.) Modern liberty is freedom from government coercion. Active liberty is the freedom to participate in government. Breyer feels that current supreme court jurisprudence focuses too heavily on the former and not enough upon the latter.

Breyer favors an approach to constitutional jurisprudence that would judge the constitutionality of laws by asking, among other things, whether the consequences of the law would increase Active Liberty. His supposition is that the constitution authorizes congress to create laws that optimize Active Liberty.

This was a profoundly divisive issue during the national debate that preceded the adoption of our Consitution, as Breyer acknowledges though without meaningful discussion. The Federalists were skeptical of too much direct participation in government in reaction to the disappointing experience with direct participation in state governments during the Articles of Confederation period. The anti-Federalists were equally convinced that direct participation in government is the only guarantee of fundamental liberty. The issue was resolved largely through the failure of the anti-Federalists to offer an alternative to Madison's proposed constitution, a fact of history that does not support the inference that Breyer wants us to draw in this book.

As part of his judicial philosophy, Breyer also advocates 'judicial modesty' which seems to be another name for 'judicial restraint'. The main difference, one might observe, is that a liberal urges judicial modesty when the Court reviews the actions of Congress, while a conservative urges judicial restraint when the Court reviews the actions of law enforcement officials. Breyer undoubtedly would see this as an oversimplification, but I think there is more than a hint of truth to it.

In the most interesting segment of his book, Justice Breyer offers several examples from real cases to illustrate how his 'active liberty' interpretive approach would have led to a different and, he argues, better outcome than did the originalism-derived interpretation adopted by other justices. He takes his examples from disputes involving issues of speech, federalism, privacy, affirmative action, statutory interpretation and administrative law.

Breyer is a thoughtful and persuasive advocate. This book is a must read for all lawyers and students of American government. The debate between originalism and active liberty is an extension of the ancient debate in ethics between textualism and consequentialism. That debate predates our constitution by many centuries and it is a debate that will outlive all of us. Breyer's book is an interesting contribution to that debate and a very stimulating read.

[Kaleb · Rating 3 out of 5]

Active liberty is the libery that encourages the people, as a collective, to particpate in self-governance. Breyer argues that the purpose of the Consitution was to further active liberty, so when in doubt, judges should intrepet statutes and the Consitution in light of active liberty. Lots of issues he considers, including federalism, affirmative action, admin law and more. Final chapter is a critique of originalism/textualism, which is often leads to irrational results and doesn't actually lead to judical restraint (like its supporters say it does).

It was nice to read a book like this for fun, even though there was a fair bit of crossover with my classes. I am not inclined to originalism or textualism, so I found myself agreeing with the big idea of the book.

Quotes

“Learned Hand once compared the task of interpreting a statute to that of interpreting a musical score. No particular theory guarantees that the interpreter can fully capture the composer’s intent. It makes sense to ask a musician to emphasize one theme more than another.”

“But the fact that most judges agree that these basic elements—language, history, tradition, precedent, purpose, and consequence—are useful does not mean they agree about just where and how to use them. Some judges emphasize the use of language, history, and tradition. Others emphasize purpose and consequence.”

“Certain constitutional language, for example, reflects “fundamental aspirations and . . . ‘moods,’ embodied in provisions like the due process and equal protection clauses, which were designed not to be precise and positive directions for rules of action.”

[David · Rating 4 out of 5]

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-minded individuals will give it a fair hearing; Liberals will love it and Conservatives--especially strict Originalists--will bemoan its very existence. I read this book as I was reading Jeffrey Toobin's tome on the Court, "The Nine," and it was interesting to get a feel for the Court and its personalities as I read Breyer's work on how and why the Court does what it does.
I will be reading it again in the future. A long way into the future, since my reading list grows ever-longer each day.

[Mark · Rating 5 out of 5]

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.

[Lezlee Hays · Rating 4 out of 5]

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 "liberal" have very different meanings when we're talking about jurisprudence.

[Sean Rosenthal · Rating 2 out of 5]

I wrote a critique reviewing the book here: http://freeindividuals.wordpress.com/... I also posted it on Amazon. http://www.amazon.com/review/R35BBLMW...

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 rights, he defends fundamental rights like free speech primarily as social rights that enhance the democratic process, and he claims that these rights should not be as strongly protected when not related to the democratic process.

What basis does he give for this interpretation? He essentially provides three reasons: (1) there is a history of voting and active participation in local government in the United State prior to the Constitution, (2) the Constitution starts with the phrase "we the people" which he understands to refer to the present public rather than the people of 1787, and (3) people vote for officials to represent them under the Constitution. Since "we the people" vote for members of the federal government and since people actively participated in state/and local governments prior to the Constitution, the Constitution allegedly grants nearly unlimited power to the federal government.

Though he alludes in a single parenthesis in the book to the Commerce Clause, he neglects to mention that Article I Section 8 of the Constitution specifically enumerates powers to Congress, that the Tenth Amendment restricts the federal government to those enumerated powers, and that the Ninth Amendment rebuts any interpretative method that construes the Constitution to deny or disparage rights retained by the people. After all, why--since voting happens--should he? Given his reasoning, if part of the Constitution said "the sole power of the federal government shall be national defense," then his arguments would override that because, after all, voting happens--meaning under Breyer's reasoning that such a clause should not be interpreted to restrict the government. In fact, he does ignore such a clause since the Tenth Amendment restricts the government to national defense and a handful of other powers.

To more specifically respond to his justifications, all three of them provide evidence that the Constitution designed a government intended to reflect generally the will of the people, but they do not show what powers the Constitution granted the democratically run federal government. His first reason provides little more than context since the history predating the Constitution in no way describes the actual powers enumerated to the federal government. Regarding his second reason, "we the people" in context does not even support his position that the preamble emphasizes the democratic nature of the Constitution by referring always to the present generation rather than the founding generation. Though he claims that the phrase refers to the present public rather than "we the people of 1787," his interpretation ignores that the preamble continues beyond the first three words to say, "and secure the blessings of liberty to ourselves and our posterity" (emphasis added). As it references future generations, the Preamble shows that the Constitution created a government of fixed binding rules for the people and their posterity. Thirdly, the fact that various parts of the Constitution describe direct and indirect electoral processes does make government officials ultimately accountable to the people, but it does not describe what the government may do under the Constitution. The powers enumerated to Congress, and not the electoral process, determines the scope of the federal government's powers.

More disappointing than his complete neglect of the Tenth Amendment, he also does not attempt to reconcile his support for judicial deference to enable Active Liberty with his support for the rights protected in cases not mentioned in this book such as Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas (contraception use, abortion, and sodomy respectively). In fact, in his chapter on privacy, he quite explicitly says that it would be best for issues of privacy to be handled by the democratic people exercising their Active Liberty. Similarly, when covering the First Amendment, he limits its purpose to protecting the social benefits of speech in a democratic society, and he denies that the First Amendment strongly protects all other speech--even though its text quite explicitly protects a much broader array of rights. In contrast, an interpretation that protects the right to use contraception, have an abortion, and engage in sodomy removes these issues from the purview of the democratic process and limits the Active Liberty Breyer otherwise defends, but he supports these privacy interests nonetheless. Why? Just as he remains silent on why the Tenth Amendment does not meaningfully restrict the federal government, he remains equally silent on why the Due Process Clause protects this arbitrary hodgepodge of rights.

Though one has to wonder under Breyer's reasoning why these specific rights deserve protection, one can more importantly ask why Breyer so narrowly limits the rights free from the clutches of Active Liberty. If people have a right to engage in sodomy in their home, then why does Active Liberty allow for the criminalization of prostitution done in the same home? If people have a right to use contraception in their home, then why does Active Liberty allow for the criminalization of medical marijuana use in the same home? For each arbitrary right that Breyer deems outside the scope of Active Liberty, many more rights could be protected under similar reasoning, but Breyer, at least for rights unrelated to promoting the democratic process, does not even attempt to produce a principle to determine which unlisted rights Active Liberty cannot violate.

As with most living constitutionalists, Breyer ignores substantial sections of the Constitution in determining his judicial philosophy. Despite his enormous focus on the electoral process described in the Constitution, he ignores that Article I Section 8 only enumerates a limited set of powers to the federal government, that the Tenth Amendment restricts the federal government to its delegated powers, and that the Ninth Amendment protects unlisted rights from being denied or disparaged. With his focus on Active Liberty, he provides no justification for why Active Liberty deserves restrictions in cases other than those that promote the democratic process, and more importantly no principle to explain the random rights that are deemed outside the scope of Active Liberty. Rather than a presumption of constitutionality due to its democratic nature, the Constitution should be interpreted to have a presumption of liberty due to the many limitations it imposes on government power. The amount of the Constitution about which Breyer remains silent when attempting to justify deferring to Active Liberty simply reveals how much of the Constitution must be ignored to come to such a conclusion.

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Interesting Quotes:

"Why should courts try to answer difficult federalism questions on the basis of logical deduction from text or precedent alone? Why not ask about the consequences of decision-making on the active liberty that federalism seeks to further? Why not at least consider the practical effects on local democratic self-government of decisions interpreting the Constitution's principles of federalism-principles that themselves seek to further that very kind of government? Why remain willfully blind to one important dimension of the Constitution's federalism objective, that of active liberty?"

-Justice Breyer, Active Liberty [Note: "Active Liberty" means the liberty of the ancients or essentially participatory democracy]

The easy answer is because Article VI of the Constitution declares the Constitution, and not Justice Breyer's personal views of a prudently managed government, to be the Supreme Law of the Land. The more clever reply is that, using Justice Breyer's arbitrary reasoning, he should start ruling a substantial number of laws and regulations unconstitutional in light of public choice theory.

[Allie Mast · Rating 5 out of 5]

Stephen Breyer: my very favorite justice!! So compelling and very readable, I thought!

[Phillip · Rating 2 out of 5]

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 not that difficult to do. By the same token, his approach has its flaws, especially a judge who factors in consequences. But, even though he is repetitive at times, it is interesting to have a sitting justice explain their approach to statutory interpretation. It's not a great book, but a legal reader can skim it and walk away with what he's trying to say.

[Salvatore · Rating 3 out of 5]

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.

[Adrienne · Rating 4 out of 5]

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.

[Jon-Erik · Rating 3 out of 5]

You pussy.

[Tom Sulcer · Rating 2 out of 5]

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 voters. And they serve as long as they wish. Much of the judicial abuse of power can be traced back to 1803 with Chief Justice Marshall's Marbury v. Madison decision which gave the court power to strike down legislative acts which it deemed "unconstitutional" and many critics have examined the Constitution and have found no legal basis for this partisan-motivated blatant grab for power. Gradually the Supreme Court has sided with a growing tendency for political power to gravitate to Washington; specific rulings over time and creative interpretations of the Constitution's commerce clause eroded states' authority to regulate their own economies. Today, Washington regulates much of the economy, and it does this badly, in my view.

So, I'm not going to focus my review on this particular book which has some good ideas about contrasting ancient with modern liberty, about judicial restraint, about Breyer's sense of the constitution. Rather, I'll focus on fixing America.

In my view, there is a dangerous concentration of power within Washington in the presidency. Other scholars have written about dangerous structural flaws in the Constitution which include gerrymandering, underrepresentation of voters from populous states in the Senate, no term limits for Supreme Court justices, lack of representation for D.C. voters, inability to get rid of an incompetent or ill president quickly, abuse of the presidential pardon, the danger of martial law if there's a substantial attack on Congress, and so forth.

I think there are even more serious flaws with the Constitution. The foreign policy architecture places too much authority in the hands of one overburdened official -- the president -- so American foreign policy is largely dependent on the quality of the president who can be distracted by domestic concerns as well as party politics. Second, the judiciary has taken it upon itself to ride herd over the legislature, and there have been intelligent arguments by foreign scholars such as Adam Tomkins that the judiciary is ill suited for this task (for example, courts have to wait for specific cases to bubble up before they can make a ruling). Third, the federal arrangement has become undone. State governments have lost considerable power to regulate their economies, and Washington has taken over the role of chief regulator, but it does this job badly. Fourth, citizenship is undefined. In my view it entails specific responsibilities including regular participation in local government meetings; however, most Americans are not true citizens but mere consumers, political zombies, angry and frustrated workers who are politically apathetic.

What has happened, in my view, is that corruption and rot and partisanship and gridlock have overwhelmed government so that it can't begin to face serious long term problems such as Social Security underfunding, environmental dangers, nuclear terrorism. Washington can't fix itself. It's like a crashed computer, unresponsive to keystrokes.

So I am summoning a Second Constitutional Convention and among my chosen delegates is Justice Breyer -- while I don't agree with all of his views, I think he should be there to help keep some continuity with the present Constitution.

But I think delegates should think seriously about a nagging issue of national importance -- specifically, nuclear terrorism. Justice Breyer must reform America so that it makes this danger much less likely. Many experts see terrorism as essentially a government and military and police problem. And I think that's a mistake. I think terrorism is a bigger problem -- it's a citizens' problem. We're the ones who suffer when it happens. So citizens need to prevent it. And as citizens we have wider latitude and authority to act than government officials have.

Terrorism, in my view, is "violence against individual rights". Begin with my definition and a solution will follow. One can suppose there are three types of terrorists -- criminals (neighbors who violate our rights), tyrants (our own government officials who violate our rights) and foreign terrorists (powerful individuals abroad or heads of state.) All three types of terrorism must be prevented, in my view. It's not enough for government by itself to try to fight terrorism, because in trying to fight terrorism, government may become a terrorist towards its own people. It's a multi-faceted problem, larger but solvable, in my view. We can't try to fight one form of terrorism by exacerbating another. But this happens routinely in airports: to prevent airline hijackings (crime) security guards frisk every passenger without cause (a form of tyranny that passengers put up with despite being treated like criminals.)

My book "Common Sense II: How to Prevent the Three Types of Terrorism" (Amazon & Kindle, 184 pages) gives a prevention strategy. The essential concept linking an effort to prevent each type of terrorism is the application of light (meaning information, exposure, awareness.) For example, to prevent crime, we must identify all movement in public while strengthening privacy. For this to happen, citizens must agree to such monitoring, and for this to happen, people must become real citizens, not merely apathetic consumers and shoppers which characterize most Americans today. Citizenship should be a contract between individual and state with specific responsibilities and privileges. It's possible to prevent every instance of home-grown terrorism using this method. The rest of my book shows how one can apply the concept of light to exposing the other types. For example, I think the architecture of government requires an overhaul so that America can make steady long-term foreign policy, consistently rewarding friends and punishing enemies; but today it can't do this because administrations change every eight years, sometimes after only four. I propose a revised architecture based on lessons from history and political philosophy.

My strategy will prevent all types of terrorism, including smuggled nuclear bombs. I challenge Justice Breyer to read my book and respond to my invitation to attend the Second Constitutional Convention. My strategy is brief, rational, non-religious, written by a citizen for citizens, non-technical, non-partisan. Be prepared: there are some controversial ideas (one expert found it "bracing"). But my book can protect America. It's plain logic from one citizen to another.

Overall, the existence of this book serves as a painful reminder that the Supreme Court has become politicized, arrogant, abusive.

[Andy · Rating 4 out of 5]

Justice Breyer created a very readable defense of his approach of intentions-based Constitutional interpretation as compared to textually-literal interpretive styles. In relatively few pages, he makes the case for his point of view that purpose and outcomes should have a voice in Constitutional interpretation, presents a contrary point of view, acknowledges strengths in others' points of view, but also calls out their weaknesses. Most poignantly, he dashes the myth that a literal reading of the text protects against biased interpretation. He argues that we get no more of an activist judiciary one way vs the other, and that judicial modesty is an important quality in sitting on the bench.

From a layman's point of view, it makes sense that our system of justice is dynamic - not to rewrite meaning (that's the purpose of the amendment process), but to draw determinative conclusions to real conflict in evolving contexts from vaguely-written guiding principles. The genius of the Constitution is that the Founders must have foreseen the need for the application of the law to evolve, otherwise wouldn't they have used specific language?

Justice Breyer starts this treatise on a note of Modern liberty (freedom from government oppression) and Ancient liberty (participatory government). He uses this merely as context, and doesn't delve into the responsibilities that come with this liberty. While this book is subtitled "Interpreting our Democratic Constitution," it's fair to take this approach. I'm currently reading his next book Making our Democracy Work. I would expect an expansion on the role of the citizenry in this, but so far (half-way through) it seems simply to be the extended play of Active Liberty. More on that later.

[Joey · Rating 3 out of 5]

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-of-powers concerns and, second, defined more precisely the content of the democratic ideals underlying the Constitution.

But before addressing these deficiencies in more detail, I note that Breyer correctly identified various flaws in literalist forms of interpretation. Literalists, in my view, tend to at least occasionally come across as smug and arrogant when touting the virtues of their preferred method of statutory and constitutional interpretation. They regularly portray those who place less emphasis on text or original intent as raving madmen intent on inventing creative new rights and thereby undermining the republic.

Breyer respectfully and rightly pointed out that jurists focusing on purposes of statutes and constitutional provisions, as well as the practical consequences of their decisions, sincerely and, I think, justifiably, believe that they are applying the statute or the Constitution as intended by the documents’ drafters. He further and rightly noted that literalist decisions sometimes yield absurd or unworkable results that arguably frustrate the function of the documents they purport to interpret. Moreover, literalists are often guilty of the same sins of which they accuse users of other modes of interpretation. In crafting the bright-line rules they tend to favor, they at least sometimes regard the consequences of those rules in terms of their workability and predictive function at least as much as the rules’ fidelity to the text or the drafters’ original intent. This represents a departure from the positive law, the literalist’s cornerstone. Finally, Breyer observed, literalist modes of interpretation cannot defend decision-making entirely from the individual values and opinions of judges, which subjectivity is generally anathema to literalists. In short, literalists can be and are subject to many of the very criticisms they level at non-literalists.

But Breyer’s criticisms of literalism did little to support his own preferred method of interpretation. Further, his case for why active liberty is a proper basis for judicial decision-making was pocked with seemingly illogical assertions. For example, his failure to articulate how judges should interpretively apply a concept as vague and broad as the “democratic character of the Constitution” bewildered me somewhat. Breyer did effectively recount how one important theme animating the Constitution was that the will of “We the People” should propel policy and law creation.

But countless other themes underlie that document’s formation as well, such as protecting minorities from the tyranny of the majority, safeguarding states from federal encroachment, building checks and balances into the document to keep any one branch of government from controlling the others, etc. What elevates active liberty so that its significance trumps these other important themes of the Constitution? There may very well be substantial reasons for which Breyer believes the democratic underpinnings of the Constitution deserve to be considered above other themes in the course of interpretation, but he does not tell us what they are. My view is that, depending on the case before the Court, a non-literalist justice other than Breyer may think it more proper to render a decision based on separation-of-powers considerations, or perhaps federalism concerns. In this light, literalism is preferable to Breyer’s approach because, unlike literalists who assert concrete reasons for relying on text or original intent, Breyer did not explain why justices should give active liberty more weight than other constitutional themes.

The other major problem with Breyer’s mode of interpretation based on considerations of democratic intent in the Constitution is that it fails to account for the legislative role in implementing the will of “We the People.” Breyer assumes that if the Court bases its decisions squarely on text or intent and does not carefully consider the potential consequences of its decisions, the judiciary could undercut the democratic foundation of the Constitution. But this misses two critical and related points. First, rooting judicial decisions in the text of statutes or the original intent of the Constitution actually supports the Constitution’s democratic foundations. Judges and justices, as unelected officials, do not represent the will of “We the People” and thus, as literalists, I think, rightly contend, are constitutionally barred from pronouncing or translating or articulating the people’s will. That is the legislature’s role. And that is the second point that Breyer misses: the legislature can and will correct statutes should the Court’s reading of the language lead to poor results. The judiciary need not and, I would argue, should not do so. Additionally, where “We the People” determine the Constitution to be deficient, the amendment process makes updating the document possible. Thus Breyer’s fears that a judiciary insufficiently focused on the consequences of its decisions will inadequately implement democracy ignore the role of the legislature and the amendment process in implementing the people’s will.

In sum, Breyer accurately portrays literalism’s shortcomings, but he does not make a compelling case that active liberty should be a foundational consideration in the Court’s decision-making process. Literalism may be imperfect, but it does not necessarily neglect the Constitution’s democratic impulses. And until Breyer more substantially articulates why these impulses merit more judicial attention than others that enliven the Constitution, active liberty seems to be a floating ideal insufficiently tethered to any express judicial method of interpretation.

[Jack R.]

Breyer's humble, persuasive, and reasonable defense of his judicial philosophy, one that prioritizes decisions that emphasize the Constitution's framework for fostering greater political participation (this being "active liberty," as opposed to the modern liberty of unalienable rights). The text also includes a critique of the "literalist" (textualist/originalist) jurisprudence that, sadly, dominants the contemporary court (a system that makes linguistic canons of construction take near-total precedent over highlighting the legislator's general purpose in a statute). One wonders if the current pushback against democratic decision making amongst conservatives, from Trump to no-name reactionary state legislators, is due to decades of court decisions that continually eliminate, sideline, weaken the Constitution's goal of "We the People" governing ourselves.

[Donald Powell · Rating 5 out of 5]

A fascinating discussion of varying judicial approaches to constitutional and statutory construction. "Active Liberty" is a principle that the Constitution has a purpose of preserving and enhancing the role of the people in their governance. Citing the language: ". . . deriving their just powers from the consent of the governed" he argues Judge's must interpret the constitution from the perspective which more likely serves this purpose. The last chapter was an excellent dissection of the "literalist" vs. the "active liberty" approaches to a jurist's work. Maybe the book is more likely to be read by students of the law but it should be read by all of us and considered as it relates to our responsibility as citizens.

[Mark · Rating 3 out of 5]

Stephen G. Breyer lends his judiciary expertise in writing this book on the malleable, active, Constitution. He reveals irony that those, claiming Originalism, were more radical in interpreting the law - i. e. Justice Scalia’s written opinion on Washington D.C. gun laws - coming about through an extremely radical approach to interpreting Constitutional law; hardly Originalist, in understanding second amendment.
He also argues the Bush vs. Gore Florida election results should have been left alone and Supreme Court made egregious precedent stepping over state rights.
Breyer presents other Supreme Court rulings to show fallibility, determining how people are governed, in a republic. Were they active or inhibiting in rule of law?
Book is slim, but provocative and insightful, proving the Constitution is a living document; not displayed in a vacuum, glass, case.

[InsertUsernameHere · Rating 3 out of 5]

This book is an opinion of what Justice Stephen Breyer thinks of the Constitution. I personally do not agree with his views, and so I did not find the book particularly enjoyable. There is no plot, it is just a book stating his opinions. This book is not the easiest thing to read either, but shouldn't be that hard for a teenager that is adept at reading. If you enjoy political commentary or you enjoy listening to talk shows, this book is might be for you. Just remember that although Justice Breyer is very educated, his views are liberal and I would consider him fairly "left-wing".

[Kyle Tucker · Rating 4 out of 5]

Breyer argues that values and consequences are inescapable for both literalist and non-literalist theories of judicial review. The constitution does not provide an instruction manual on interpretation, thus making anyone’s interpretive theory subjective. The difficulty, then, is deciding which values matter, in what order they matter, and whether that order should change depending on the issue. Breyer proposes active liberty, the freedom of citizens to participate in government, as a primary value to emphasize when deciding cases.

[clara · Rating 4 out of 5]

This is a short book that is insecure about being short so it's really dense to make up for it. It's good, though. I've never really read anything about a living-constitutional type judicial philosophy, and now I understand better why someone might not want to take an textualist or originalist approach to interpreting laws or the Constitution respectively. Some of the arguments were sort of a reach. But most of them weren't.

[Don · Rating 4 out of 5]

The was a short but fascinating look at the interpretation of Justice Breyer on American constitutional law. Stressing the necessity of ‘active liberty’ and the subsequent deriving of all law from the people, Breyer clearly explains his rationale for interpreting judicial matters not just strictly in a ‘black and white,’ or matter-of-fact manner.

[Patrick Ma · Rating 4 out of 5]

The beginning is a bit dry, but once Breyer gets into the meat of the book, his prose is direct and persuasive--as far from poetry and as far into legal writing as you can get. As for the 'active liberty' argument: he sure makes a lot of sense. Strange, but I read Scalia I thought Scalia made a lot of sense too...but Breyer and Scalia totally disagree with one another...

[Cscha101 cha · Rating 4 out of 5]

Ancient liberty, which is active liberty, and modern liberty and the theme of democracy is what the law is meant to be protecting. This covers the point or reason or "how" of interpreting the law. This is Judge Breyer's philosophy on how one should look at reading and understanding the law.

[Rebecca · Rating 3 out of 5]

A look at the different strategies, lenses to interpret the Constitution and laws. Not being a lawyer, judge or Constitutional expert, this gave insight and a point of view of legal process and interpretation.

[Alex W Bennett · Rating 3 out of 5]

Interesting but lacks good in depth details

Justice Breyer does a good job of explaining his ideological approach to the constitution . Good arguments made but lacks specifics in areas Nd talks in generalities at times.

[TENN2ARIZ · Rating 5 out of 5]

Justice Breyer has written an excellent short approach to judicial decision-making at the appellate level. I think he has also pierced the intellectual and legal hypocrisy of the originalist approach to interpretation of constitutional provisions.

[Steve · Rating 4 out of 5]

A dry but very accessible and concise presentation of Justice Breyer’s approach to the constitution.

[Tim · Rating 1 out of 5]

A lot of words meaning mostly nothing. At best, they argue for a little common sense in interpretation; at worse they are contradictory and show how much subjectivity he introduces into his reasoning.

[Luis · Rating 3 out of 5]

Stick to judging, Stephen Breyer. You're not a great writer.

[Holly]

A really interesting read, especially after having read Scalia's "A Matter of Interpretation" recently.