Active Liberty
In "Active Liberty," U.S. Supreme Court Justice Stephen G. Breyer presents a vision for constitutional interpretation that seeks to rival the prevalent "originalism" approach. Originalism emphasizes a narrow reading of constitutional provisions, focusing on their text and the original intent behind them. Breyer's book, drawn from his Tanner Lecture series at Harvard, offers an alternative by promoting "active liberty," a concept rooted in both ancient and modern notions of freedom, as a guiding principle for understanding the Constitution.
Understanding Active Liberty
Breyer explores the philosophical underpinnings of "active liberty," drawing on the ideas of Swiss philosopher Benjamin Constant. Constant differentiated between "modern liberty," which involves individual freedom from excessive government control, and "ancient liberty," or "active liberty," which emphasizes the collective power of people to participate in self-governance. Breyer argues that both forms of liberty must be balanced to maintain a healthy republic, yet his focus is on elevating "active liberty" as a critical lens through which to interpret the Constitution.
According to Breyer, the Constitution should be seen not just in light of its specific provisions and the narrow intent of its framers, but through an overarching purpose aimed at enabling effective self-government. This approach does not suggest that judges have free rein to interpret the Constitution as they wish. Instead, Breyer emphasizes that judicial interpretation should serve the broader goal of enhancing democratic governance, while maintaining restraint to support legislative authority.
Application to Modern Issues
Breyer applies the principle of "active liberty" to contemporary constitutional challenges such as free speech, affirmative action, and privacy. He criticizes the Supreme Court for not adequately prioritizing political speech, which he views as fundamental to popular rule in the U.S. By equating political speech with other forms, the Court has inadvertently created obstacles to legislative authority, particularly concerning commercial speech rights.
On affirmative action, Breyer argues for legislative power to use such measures, within limits, to promote political equality for disadvantaged groups. This stance illustrates the distinction he draws between "active liberty" and mere majoritarianism. "Active liberty" seeks to enhance democracy, recognizing the dynamic nature of U.S. government as it evolves alongside social and technological advancements.
Regarding privacy, Breyer advocates for legislative flexibility in addressing challenges posed by new communication technologies in an interconnected world. He acknowledges the need for judicious respect for legislative authority, cautioning against inappropriate judicial overreach in public policy matters.
Theoretical Challenges and Defenses
In the book's theoretical section, Breyer directly addresses critics like Justice Antonin Scalia, who champion originalism. Breyer defends the consideration of "purposes" and "consequences" in judicial interpretation, arguing against the sufficiency of focusing solely on textual language and historical intent. He questions the legal and historical foundations of originalism as the exclusive legitimate interpretation method, noting that the Constitution and its framers did not prescribe originalism as the sole approach.
Breyer asserts that interpreting the Constitution through "active liberty" does not equate to arbitrary judicial decision-making. The system's checks and balances prevent such outcomes, and judges should consider the repercussions of decisions that might ignore established legal parameters. The concept of "active liberty" includes self-restraint, as adherence to the rule of law is vital for democracy.
Throughout the book, Breyer maintains a tone of humility and civility, offering his views without resorting to sarcasm or personal attacks. His approach embodies polite discourse, standing in contrast to the more confrontational style of some of his peers.
Criticism and Reception
Breyer's "Active Liberty" has sparked diverse reactions from commentators in both popular and scholarly circles. Some critics, particularly originalists, liken Breyer to figures from the Warren Court era, accusing him of advocating judicial activism akin to...
(This entire section contains 905 words.)
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legislating from the bench. They argue that "active liberty" is too broadly defined, allowing judges excessive latitude to infuse personal values into legal interpretation rather than adhering strictly to the law.
Some of Breyer's sympathizers share concerns about the vagueness of "active liberty," recognizing its openness to varied interpretations. These supporters appreciate Breyer's focus on adapting to social changes and promoting individual rights, but they also seek clearer guidance for situations where majority rule might not reflect the most enlightened societal interests. Critics note Breyer's lack of engagement with existing scholarship on constitutional interpretation, suggesting a missed opportunity to build on existing alternatives to originalism.
Judicial Philosophy and Impact
Criticisms notwithstanding, Breyer contends that no definitive textual or contextual basis supports originalism as the only valid interpretive method. The Constitution lacks specific interpretive rules, and early judicial actions, like Chief Justice John Marshall's establishment of judicial review, suggest a history of judicial activism contradicting conservative constraints.
Breyer's moderation and well-defined concept of "active liberty" reflect a form of judicial restraint different from that advocated by conservatives. His work prompts reflection on whether "judicial activism" is genuinely a threat or merely a rhetorical device used by those opposing social progress. While "active liberty" may be critiqued for its lack of specificity, Breyer argues that no universally accepted interpretive principle currently exists, nor is it clear that any could provide the desired clarity.
Ultimately, "Active Liberty" may not fulfill the hopes of those seeking a strong adversary against vocal originalists like Justice Scalia. While Breyer's reasoning is sound and his style clear, he lacks the flair that attracts attention in today's society, where rhetoric often triumphs over substance. Nonetheless, "Active Liberty" offers a thought-provoking exploration of constitutional interpretation, deserving attention for its insights and the discourse it stimulates regarding judicial philosophy and democracy's future.
Bibliography
- Booklist 102, no. 6 (November 15, 2005): 9.
- Library Journal 130, no. 15 (September 19, 2005): 77.
- The New Republic 233, no. 12 (September 19, 2005): 29-34.
- The New York Times 155 (September 26, 2005): A16.
- Newsweek 146, no. 13 (September 26, 2005): 72.
- Publishers Weekly 252, no. 30 (August 22, 2005): 48.
- The Wall Street Journal 246, no. 37 (August 23, 2005): B1-B4.
