This book, based on the Tanner lectures on Human Values that Justice Stephen Breyer delivered at Harvard University in November 2004, defines the term "active liberty" as a sharing of the nation's sovereign authority with its citizens. Regarding the Constitution as a guide for the application of basic American principles to a living and changing society rather than as an arsenal of rigid legal means for binding and restricting it, Justice Breyer argues that the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems.
Giving us examples of this approach in the areas of free speech, federalism, privacy, affirmative action, statutory interpretation, and administrative law, Justice Breyer states that courts should take greater account of the Constitution's democratic nature when they interpret constitutional and statutory texts. He also insists that the people, through participation in community life, can and must develop the experience necessary to govern their own affairs. His distinctive contribution to the federalism debate is his claim that deference to congressional power can actually promote democratic participation rather than thwart it. He argues convincingly that although Congress is not perfect, it has done a better job than either the executive or judicial branches at balancing the conflicting views of citizens across the nation, especially during times of national crisis. With a fine appreciation for complexity, Breyer reminds all Americans that Congress, rather than the courts, is the place to resolve policy disputes.
Active Liberty is a declaration of the first importance, made by a judge often regarded as one of the court's most brilliant members.
Supreme Court Justice Breyer offers his view of constitutional interpretation at a crucial time, when the Court's future is very much at stake. Breyer himself made the crucial deciding votes recently in the two 10 Commandments cases: he notably split his vote, supporting the display in Texas and opposing the one in Kentucky, a nuanced choice that confounded many and that he explains lucidly here. Breyer works this explanation into a larger look at an important aspect of his judicial philosophy: the need for justices to look at cases in light of how their decisions will promote what he calls "active liberty," the Constitution's aim of promoting participation by citizens in the processes of government. It's an approach that emphasizes "the document's underlying values" and looking broadly at a law's purpose and consequences rather than relying on a rigid overarching theory of judicial interpretation.The justice looks at six areas of law to show how this approach influenced, or might have influenced, high court decisions on free speech, affirmative action, and privacy, among others. For instance, in free speech, Breyer notes that an active-liberty outlook would have led the Court to support campaign finance laws controlling soft-money contributions. He explains how the Court's decision in favor of the University of Michigan law school's affirmative action program supported the participation of minorities in our political system. (Interestingly, he doesn't discuss the Court's simultaneous decision against the university's undergraduate affirmative action program.)Breyer saves his hard ball for the very end: a calm, judicious but powerful attack on the interpretive approach of some of his judicial colleagues, what he calls an "originalist" approach, relying primarily on a close reading of the text of a statute or the Constitution. Anticipating originalists' criticism that only their approach can prevent judicial subjectivity, Breyer forcefully illustrates the many constraints on subjectivity and shows that originalism is not as objective as they claim. Breyer's prose is admirably simple and clear, and his discussion shows a keen legal intellect that espouses broad values rather than narrow theories, and a deep, humane concern with fostering democracy and the well-being of the citizenry. This will be essential reading at a possibly watershed moment for the Supreme Court. 50,000 first printing. (Sept. 17)
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October 09, 2006
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Excerpt from Active Liberty by Stephen Breyer
The concept of active liberty--as I said at the outset--refers to a sharing of a nation's sovereign authority among its people. Sovereignty involves the legitimacy of a governmental action. And a sharing of sovereign authority suggests several kinds of connection between that legitimacy and the people.
For one thing, it should be possible to trace without much difficulty a line of authority for the making of governmental decisions back to the people themselves--either directly, or indirectly through those whom the people have chosen, perhaps instructed, to make certain kinds of decisions in certain ways. And this authority must be broad. The people must have room to decide and leeway to make mistakes.
For another, the people themselves should participate in government--though their participation may vary in degree. Participation is most forceful when it is direct, involving, for example, voting, town meetings, political party membership, or issue- or interest-related activities. It is weak, but still minimally exists, to the extent that it is vicarious, reflected, say, in the understanding that each individual belongs to the political community with the right to participate should he or she choose to do so.
Finally, the people, and their representatives, must have the capacity to exercise their democratic responsibilities. They should possess the tools, such as information and education, necessary to participate and to govern effectively.
When I speak of active liberty, I mean to suggest connections of this kind between the people and their government--connections that involve responsibility, participation, and capacity. Moreover, active liberty cannot be understood in a vacuum, for it operates in the real world. And in the real world, institutions and methods of interpretation must be designed in a way such that this form of liberty is both sustainable over time and capable of translating the people's will into sound policies.
. . . AS FALLING WITHIN AN INTERPRETIVE TRADITION . . .
The theme as I here consider it falls within an interpretive tradition. That tradition encompasses a particular view of democracy, as including not only the "rights of the whole people," but also "the duties of the whole people." And it calls for judicial restraint, basing that call upon both technical circumstance and democratic value. As to the first, "[c]ourts are ill-equipped to make the investigations which should precede" most legislation. As to the second, a judge's "agreement or disagreement" about the wisdom of a law "has nothing to do with the right of a majority to embody their opinions in law." For both kinds of reasons, even if a judge knows "what the just result should be," that judge "is not to substitute even his juster will" for that of "the people." In a constitutional democracy "a deep-seated conviction on the part of the people . . . is entitled to great respect."1
That tradition sees texts as driven by purposes. The judge should try to find and "honestly . . . say what was the underlying purpose expressed" in a statute. The judge should read constitutional language "as the revelation of the great purposes which were intended to be achieved by the Constitution" itself, a "framework for" and a "continuing instrument of government." The judge should recognize that the Constitution will apply to "new subject matter . . . with which the framers were not familiar." Thus, the judge, whether applying statute or Constitution, should "reconstruct the past solution imaginatively in its setting and project the purposes which inspired it upon the concrete occasions which arise for their decision." Since law is connected to life, judges, in applying a text in light of its purpose, should look to consequences, including "contemporary conditions, social, industrial, and political, of the community to be affected." And since "the purpose of construction is the ascertainment of meaning, nothing that is logically relevant should be excluded."2
That tradition does not expect highly general instructions themselves to determine the