Justice Stephen Breyer argues that an animating constitutional ideal is “active liberty,” meaning active self-governance by We the People.7 In Breyer’s view, we should interpret ambiguous constitutional provisions with that ideal in mind. The general idea of “active liberty” can trump the original understanding. Breyer himself is no originalist—in fact he is a strong critic of Scalia’s approach—and in the face of ambiguity in the text, he would invoke democratic ideals.
