Active Liberty

Starred review from August 22, 2005
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.

September 15, 2005
In this short book, based on lectures delivered last year at Harvard, Breyer, associate justice of the U.S. Supreme Court since 1994, explains how he reads the Constitution and the statutes enacted under it. He argues that, as the framers established a democracy, all interpretations must be "view[ed] through a more democratic lens." He rejects originalism and textualism, doctrines favored by colleagues Antonin Scalia and Clarence Thomas, arguing that original intents are murky and often unknowable while literal adherence to the text can produce "seriously harmful consequences" and perverse results. For Breyer, democracy means that the people, through their elected representatives, ought not be thwarted by rigid philosophies of judicial interpretation that let the letter of the law kill its spirit. Though conservatives will see Breyer's arguments as judicial overreaching and making law rather than interpreting it, his book is a good introduction to how judges observe the rule of law. Written in clear language for the lay reader -though backed by scholarly notes -it is recommended for all libraries, especially those interested in Constitutional law and the Supreme Court. -Michael O. Eshleman, Kings Mills, OH

Copyright 2005 Library Journal, LLC Used with permission.

November 15, 2005
An associate justice of the Supreme Court, Breyer proposes a framework for approaching constitutional issues that gives priority to the underlying purposes of the Constitution when engaging such issues. The underlying constitutional value with which he is most concerned is "active liberty," which places emphasis on democratic participation. To a lesser extent, Breyer is concerned with modern liberty, or government intrusion on the rights of individuals. Breyer maintains that the value of participation in a democracy can impact -decision-making, and he gives examples in affirmative action, free speech, and federalism. His position contrasts sharply with the strict constructionist approach favored by certain of his more conservative cohorts, who try to limit their focus to the strict language of the Constitution and other statutes. Interestingly, Breyer's approach has much in common with certain conservative values, as the active liberty approach tends to defer to Congress. However, for the purpose of greater citizen participation, he envisions an approach that is adaptive and changes over time. Rather than looking exclusively to the past, Breyer appreciates the need to engage the Constitution as a living document.(Reprinted with permission of Booklist, copyright 2005, American Library Association.)