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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 07, Adrienne rated it really liked it 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.

Dec 27, Tom Sulcer rated it it was ok.

Stephen Breyer, Active Liberty: Interpreting a Democratic Constitution - PhilPapers

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.


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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 Why is a Supreme Court justice writing a book? 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 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. 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.

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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. 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.

View 1 comment. Jul 29, Joey rated it liked it. 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- 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. 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.

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. Further, his case for why active liberty is a proper basis for judicial decision-making was pocked with seemingly illogical assertions. 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. But this misses two critical and related points. The judiciary need not and, I would argue, should not do so. 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.

Oct 04, Donald Powell rated it it was amazing Shelves: history , government. A fascinating discussion of varying judicial approaches to constitutional and statutory construction. Citing the language: ". The last chapter was an excellent dissection of the "litera A fascinating discussion of varying judicial approaches to constitutional and statutory construction.

The last chapter was an excellent dissection of the "literalist" vs. 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. May 25, InsertUsernameHere rated it liked it. 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". May 30, Don rated it really liked it. The was a short but fascinating look at the interpretation of Justice Breyer on American constitutional law. Mar 20, Cscha cha rated it really liked it Shelves: 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.

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Aug 19, Soren Schmidt rated it liked it. Had a few shining moments, and I was persuaded on some of the broader points, but it felt mostly watered down and sometimes contradictory. Breyer's most interesting work comes when he is introducing and answering objections to his theory of interpretation. Nov 07, Luis rated it liked it. Stick to judging, Stephen Breyer. You're not a great writer. Feb 09, Steve rated it really liked it. Jan 09, Tim rated it did not like it Shelves: non-fiction. 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. Jun 29, Will rated it liked it. 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. But, has it always been this way? In his book, The Nine, Jeffrey Toobin suggests that, over the past thirty years 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.

While the historical context in which he frames this argument is limited Toobin hardly discusses the USSC before , and only cursorily when he does so , Toobin makes good use of recent USSC decisions and the personal and judicial lives of the justices to convincingly craft his argument. He spends an entire section there are only four in the book discussing Bush v. Gore , and repeatedly cites it as an example of the failures of the USSC at the time.

Gore, Toobin is very informative and convincing. Moreover, by discussing this case in detail, Toobin furthers his argument of the increasing melding of the political and judicial, and their progressively conservative collective leaning. By doing this, Toobin injects some levity into The Nine, while also taking potshots at some of the more conservative justices. While there is perhaps some credence to this, as there would be for all SC justices, his comments read as petty and weak.

In advance of discussing Bush v.


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  • Though these comments are largely harmless, and—I will guiltily admit—intriguing, they really reduce the force and reputability of his thesis. The Nine was published in , a year after the appointment of Justice Alito, and two years after the appointment of Chief Justice Roberts. With the confirmation of these justices, the USSC shifted overnight from an institution of intractable moderation to one of conservative activism. And, while this compositional change led to some immediate judicial reversals—namely, the allowance of partial-birth abortions, through the decision: Gonazalez v.

    As a result, the book is largely anticipatory—a bracing for the expected polarization of the court and its opinions. Feb 09, Jacob Lines rated it liked it Shelves: law. Justice Breyer is a brilliant legal scholar. But I have a few problems with it. First, he presents a kind of whiggish history — one in which the forces of democracy are always pressing forward, making our Constitution more and more democratic.

    The problem with this is that those changes were made by formal amendment. Those changes made through formal amendments do not somehow authorize judges to propel further changes through judicial interpretation and construction. The other problem is his focus on purpose — what is the purpose of this constitutional provision, or that statute? Sometimes, legislatures write and vote on clauses that explain the purpose of a law.

    But that is rare. The only way to discover a purpose is by reading the law. It is very easy to read our own prejudices into a statute. He claims that it is legal because it is similar to A through D, and the clear purpose of the law was to allow things like that.

    So, who is right? What was the purpose of the law? To promote A through D and beyond? Or to carefully allow a few things that it felt were okay, but not allow E and beyond, which it just could not support? Or the side that points out that the only way most individuals can be heard is by donating to non-profit corporations that then spend that money on political speech that the individual agrees with? Overall, this is an interesting, well-written, thought-provoking book. Well worth reading. Apr 27, Mick rated it liked it.

    The next time I read about a decision by the Supremes that leaves me scratching my head and wondering, "What were they thinking? Once these two liberties are balanced, judicial decisions must be rendered based on the Constitution's "democratic objective. In other words, as Justice Breyer argues, affirmative action is good in some cases, bad in others; the posting of the Ten Commandments is wrong in one venue, but perfectly acceptable in another.

    Such judicial selective subjectivity is a necessity, argues the progressive jurist, based on a country that is in constant change. So we arrive at the conclusion: A Living Constitution is just like having your cake, and eating it, too. If there's a screw-up, we can always come down on the other side of a decision tomorrow.

    Live and learn. Con: We see, firsthand, how the progressive jurists can stretch and distort any issue to conform to "Constitutionality"; Pro: We get up close and personal into the mental machinations of a Supreme Court justice. Kind of scary, but interesting, too. Jan 02, Brian rated it liked it Shelves: non-fiction , law. 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.

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    Judicial Immodesty Stephen Breyer, [i]Active Liberty: Interpreting Our Democratic Constitution[/i]

    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 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's focus on active liberty is both simple and informative.

    As a primer for a better understanding of constitutional functions, this book was great. However, Breyer draws on dry, uninspired cases to illustrate the usefulness of active liberty. For instance, he discusses at length a case interpreting a statute allowing foreign governments to remove cases to federal court based on government ownership of defendant corporations. While the case is a useful illustration of the difference between formal judicial interpretation of statutes and interpretations based on the purposes of "active liberty," I was not struck by the transformative nature of Breyer's perspective.

    I was left with the impression that Breyer intended his book to be as uncontroversial as possible--arguing passionately for a concept few people are likely to oppose. The real disagreement is not whether "active liberty" is an important part of the Constitution's protection, but on the amount of emphasis that judges place on "active liberty. Mar 02, Erik Fox rated it really liked it Shelves: government. Justice Breyer gives his vision of the role of a judge, and the importance of ancient and modern liberty in judicial interpretation.

    Active liberty is a classical liberty characterized by freedom of an individual to participate in government. Contemporary liberty is a persons freedom from governmental imposition. Both liberties should be promoted, but the former is preeminent. Essentially, where applicable, judicial decisions should be made to enhance the democratic process, the participation of Justice Breyer gives his vision of the role of a judge, and the importance of ancient and modern liberty in judicial interpretation. Essentially, where applicable, judicial decisions should be made to enhance the democratic process, the participation of the majority of the citizenry ex.

    Randy Barnett: Increasing Freedom Through "Our Republican Constitution"

    Campaign finance reform Applying the Constitution should not be rigid and only text base but involve a comprehensive view of the purpose in the law penned by the legislature or the interpretation of the judicial body. Affirmative action, though it violates the text of the amendment, there should be a distinction between negative and positive discrimination, the latter being acceptable. It is functionally important as well to give certain races that have been discriminated against in the past, an advantage so as to hasten the day when there is greater heterogeneity in higher education and professional employment.

    The purpose of this amendment does not prohibit positive discrimination. He also argues for deference to the legislature. Breyer, in this recent book, becomes the champion of the liberty of the ancients, which, in his view, receives too little consideration in twenty-first century America.


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    • Active citizenship is truly political, exemplified by participation in national assemblies and the exercise of voting rights. Passive citizenship which might also be called simple citizenship is characterized by the exercise of various individual rights.

      Breyer's stance is, at once, historical and philosophical. Toward the end of the nineteenth and the beginning of the twentieth century—as Breyer describes it—the Supreme Court had a tendency to emphasize the protection of individual liberties, notably in defense of private property as, for example, in Lochner v.

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      New York. A few decades later, the so-called New Deal Court and then the Warren Court 2 reversed the cycle by underscoring the objective of creating a citizenry that takes active part in its government. Regarding the situation at the dawn of the twenty-first century, Breyer speculates that the pendulum has swung too far back in the other direction. Thus, his book is also a plea to more fully honor the truly active aspects of liberty.

      After his initial observations, which one may characterize as historical, Breyer's argument proceeds into the sphere of political philosophy. He highlights the democratic dimension underlying the text of the U. Constitution and invites his reader to consider that the founding fathers were more concerned with restricting the opportunity for the abuses and excesses of a representative government than with granting far-reaching personal freedoms. To prove his point, he gives a number of examples from various constitutional law domains, including free speech, federalism, privacy, equal protection, statutory interpretation, and the judicial review of administrative action.

      In the field of free speech, to choose but one example, he shows that the distinction between speech that must be unconditionally protected and speech that may be the object of limitation and regulation is wholly political in nature. It is a distinction based on the recognition of the legitimacy of popular debate, thereby protecting political pluralism. The combined historical-philosophical argument that Justice Breyer sets forth is convincing. This is especially so, given that he does not present himself as the advocate of a certain ideological position but, rather, as a community elder, recounting a particular native aspect of the American Constitution.

      Thus, for him, liberalism is inseparable from democracy. Breyer's adoption of a statistical and sociological point of view when analyzing prior decisions of the Supreme Court further reinforces the objective nature of his observations. These observations serve to underscore the importance of what might be called the impersonality of the institution. In the process, Breyer recalls that only 20 percent of the cases coming before the Court end in a split decision 5—4 , while 40 percent of the decisions are taken unanimously.

      Furthermore, the remaining 40 percent taken by a majority greater than 5—4 do not always entail the same justices falling in along the same doctrinal or ideological lines. Breyer thus conveys the implicit understanding that the very practice of the Court is sustained largely by a vision that allows ample space for the dual dimension of liberty. In an epilogue, Breyer sets forth an additional argument in considering the classic forms of constitutional interpretation.

      Perhaps backing away, somewhat, from his previous discussion, he criticizes various approaches to understanding the constitutional text and the intentions of its authors. He simultaneously denounces textualist, originalist, and literalist visions, confronting them with a larger conception he deems to be more faithful to constitutional intent. This conception would permit taking into account the real-world consequences to be expected from a decision and to do so with explicit reference a set of delineated principles.

      Here Breyer defends what might be described as a fuller, more comprehensive interpretation of the Constitution. His approach is interesting because it suggests that the passage of time itself constitutes the political dimension of interpretation. Thus, it is possible to link up the question of individual rights with the domain of politics.

      Take, for example, the nature of the First Amendment. By projecting the result of constitutional interpretation over a period of time, the law becomes political and unites the dual aspects of liberty. It seems to me that the appealing point of view set forth by Justice Breyer would be more firmly grounded if he had also touched on the Constitution's textual vagueness.

      The problem, here, is not only to defend one philosophy of the Constitution against another but also to bring out into the open the fundamental duality between the civic and the civil. The text of the U. Constitution contains nothing exceptional on this point. It does nothing more than reflect the entanglement of the new with the old, of liberalism with republicanism, of the individualist and the communitarian. This entanglement may be seen just as well in the French revolutionary constitution as in the American.