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Book Review: Active Liberty by Supreme Court Justice Stephen Breyer

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Active Liberty, by Supreme Court Justice Stephen Breyer, is a first pass at a progressive interpretation of the Constitution. at least I hope it’s a first pass. I like the book, but truth is I wanted to like it more than I do.

Justice Breyer starts out by explaining what he wants to do in the book, which is to lay out what he refers to as a "theme," a thesis on the values that should be used as aids in interpreting the constitution. He actually takes something of an originalist stance; however, beyond restrictions on governmental power he also finds goads to direct what action is necessary.

Breyer’s basic position is the Constitution’s various provisions exist in order to defend against a domineering government and to enable active participation in government by the governed. The exposition of this position is concise and pretty solid. He takes some twenty pages to explain the theme, how it fits into judicial interpretative traditions and to explain why his thesis is "consistent with the Constitution’s history."

He then applies this theme to several broad categories of constitutional issues:speech, federalism, privacy, affirmative action (the most disappointing), statuitory interpretation and administrative law. Finally he takes a significant swipe at the literalist interpretative tradition

First, the more "originalist" judges cannot appeal to the Framers themselves in support of their interpretive views….Why would the Framers  have preferred (1) a system of interpretation that relies heavily on linguistic canons to (2) a system that seeks more directly to find the intent of the legislators who enacted the statute?…Why would the Framers, who disagreed even about the necessity of including a Bill of Rights in the Constitution, who disagreed about the content of the Bill of Rights, nonetheless have agreed about what school of interpretive thought should prove dominant in interpreting that Bill of Rights in the centuries to come?

And after briefly reviewing a few cases adds

Why do I point out the uncertainties in close cases, of linguistic structure, of canons of interpretation and of history? Because those difficulties mean that the "textualist," "originalist," and "literalist" approaches themsekves possess inherantly subjective elements. Which linguistic characteristics are determinative? Which conons shall we choose? Which historical account shall we use? Which tradition shall we apply? And how does that history, or that tradition, apply now?

Significantly, an effort to answer those questions can produce a decision that is not only subjective but also unclear, lacking transparency about the factors that the judge considers truly significant.

In sooth.

Word in the press is that lawyers are discussing it in comparison to Justice Scalia’s equivalent book, and that’s good…Justice Breyer can’t establish Active Liberty as a principle all by himself any more than Justice Scalia could legitimize strict construction as a priciple without massive support.

This may be an important book.

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