Sunday, May 17, 2009

Active Liberty by Stephen Breyer

After reading The Nine I decided that Breyer is my favorite SCOTUS justice and that pretty much still stands after reading Active Liberty. His premise is based upon two types of liberty: active liberty, which he describes as having everyone in the country engaged and participating in government, and modern liberty, which he describes as individual rights. His thesis is that while both active and modern liberty are important, the Constitution is based on securing active liberty and that judges should use this backdrop when interpreting statutes and the Constitution itself. After he describes his philosophy (in which he quotes other sources way too much for my taste), he uses examples ranging from speech and federalism to privacy and affirmative action to illustrate his principles and contrast them with other approaches. He generally uses cases in which he either disagreed with the outcome or wrote in the dissent and he usually contrasts his approach with a more literalist approach. After he goes through his examples, he explains in detail his objection to the literalist approach, which I found very compelling. After reading it I believe that when Barack says he wants a justice to use empathy he means he wants someone who is not a literalist, who will take the consequences of the decision into account. While that may seem contrary to many people's idea of what a Supreme Court justice should do, as Breyer explains the approach it makes a lot of sense and is not merely an excuse for the dreaded "activist judges legislating from the bench."

While I felt that sometimes he had to stretch a little bit to apply his active liberty theme to some of his examples and I didn't always agree with him necessarily, I thought it was an interesting approach to Constitutional interpretation and probably the one I would subscribe to were I on the Supreme Court (which, by the way, I'm expecting Barack to call me about any day...). I'd say I give it 7.7 learned hands out of ten

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