Active Liberty: Interpreting Our Democratic Constitution, by Stephen Breyer

This is a short book; basically a standard law review article in book form. It’s 135 pages, including big margins and a number of blank pages between chapters.

Justice Breyer draws on Benjamin Constant in defining “active liberty” as the citizen’s right and responsibility to participate in government and lawmaking. Active liberty is distinct from “civil liberty” or “true modern liberty,” which Breyer defines as “the individual’s freedom to pursue his own interests and desires free of improper government interference.”

Breyer then gives several examples of how active liberty guided the Court’s majority or dissenters in deciding cases in the areas of speech, federalism, privacy, affirmative action, statutory interpretation, and administrative law. There is a short response to “A Serious Objection” at the end of the book, the objection being originalism/textualism, which Breyer rejects.

Basically, Breyer uses active liberty as a cover for reaching results that he likes as a matter of public policy. There is no serious discussion of the implications of his theory for relations with the other two branches of the federal government or with the states. Nor does he attempt to show how his search for the meaning that is demanded by active liberty is constrained by neutral principles, rather than his own policy preferences.

He rejects appeals to history with the comment, “How does reliance upon history bring about certainty or objectivity in such a case?” (discussing Stogner v. California, 539 U.S. 607 (2003)). Perhaps he should have read a law review note titled, “Philosophy, History, and Judging,” 30 Wm. & Mary L. Rev. 181 (1988). Hmmm . . . .

In the end, he concludes that textualism is not such a problem, because “those strongly committed to textualist or literalist views–those whom I am almost bound not to convince–are fairly small in number.” Let’s see–Scalia, Thomas, Roberts, Alito . . . that’s 4/9 on the Court–not exactly “small in number”! Breyer does not try to engage Scalia at all, and only quotes one paragraph from Thomas (in Grutter v. Bollinger, 539 U.S. 306 (2003)).

Breyer is civil throughout, however, and admirably keeps to his quixotic vision of avoiding textual notes.

He may not convince, but the effort to lay out a theory for his way of judging is worth attention.

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