Active Liberty Analysis
by Steven G. Breyer

In Active Liberty, U.S. Supreme Court Justice Stephen G. Breyer outlines his judicial philosophy. In doing so, he consciously attempts to derive a compelling alternative to “originalism,” an approach which dictates that constitutional (and statutory) provisions be narrowly interpreted in the light of the Constitution’s text, augmented, when necessary, by the intent of their legislative authors. Originalism, along with other forms of self-proclaimed “judicial restraint,” have been on the rise in recent years, backed by President George W. Bush and fronted by colorful spokespeople such as Antonin Scalia, also a Supreme Court justice. Active Liberty has caught the attention of many readers because it is seen as presenting a potential counterbalance to this growing trend.

Active Liberty is based on the Tanner Lecture series delivered by Breyer at Harvard University in November, 2004. The book opens with an exposition on “modern” and “ancient” notions of liberty as conceptualized by Swiss political philosopher Benjamin Constant (1767-1830). According to Constant, modern liberty is the freedom of individuals from any unnecessary government control (and Constant did not think very much government control was truly necessary). Ancient (or “public”) liberty to Constant, or as Breyer refers to it, “active liberty,” involves the freedom of the people as a whole to exercise self-government.

While Breyer thinks it is necessary to balance both forms of liberty to ensure a healthy republic, his purpose in the book is to promote active liberty as a beacon to constitutional interpretation. To Breyer, the U.S. Constitution is to be understood not just in the light of its specific provisions and the narrow intent of its authors but also in terms of the document’s overall purpose, which is to provide for effective self-government. This does not mean that, to Breyer, judges are free to democratize the Constitution any way they see fit. Often enough though, cases arise where the law is not black and white, and there is room for interpretation. Breyer believes such interpretation should attach itself to the broader end of enhancing and refining a system of popular rule. Breyer does not present this as an easy task, but he does make clear that he thinks such interpretation can be done with restraintespecially as the inclination is to reinforce legislative governmentand that it is fully consistent with the previous history of the living Constitution.

After explaining what is meant by “active liberty” and why it should serve as a source of constitutional interpretation, Breyer goes on to apply the concept to a number of modern constitutional issues, including free speech, affirmative action, and privacy. Based on the primacy of active liberty, Breyer expresses dismay that his fellow Supreme Court justices have failed to recognize the privileged place of political speech, which is central to the system of popular rule in the United States. Instead, the Court has treated political speech as one among many protected forms. This has led to what Breyer sees as a judicially constructed barrier around commercial speech (essentially, the right to advertise) that has unduly impeded legislative authority.

Likewise, Breyer defends the right of legislatures to utilize affirmative action (within clear limits) in order to bring political equality to disadvantaged segments of the citizenry. This is a crucial part of the book, because it clarifies the difference, for Breyer, between active liberty and simple majoritarianism. Active liberty does not merely empower the privileged majority, acting through its elected representatives. It is also to be understood as an aspiration for enhanced democracy. Thus affirmative action and active liberty both are concepts that recognize U.S. government to be a work in progress. In addition, such progress must take place in a context of rapid social and technological change.

Thus, with regard to privacy, Breyer...