Active Liberty

Stephen Breyer is a Justice of the Supreme Court. His approach to interpreting law is largely guided by an attempt to understand what the intent of the law is, and to make a decision that provides for that intent to be carried out. This stance is typically contrasted with Justice Scalia's "literalist" approach, which aims to minimize subjectivity by strictly adhering to the language of the law and precedent. In Breyer's book "Active Liberty", the author provides examples which demonstrate why he believes his method is the best for fulfilling the democratic principles of our Constitution.

Early on, he defines "active liberty" as the right to participate in self-governance. "Modern liberty", then, is a freedom of individual rights. And while the style of interpretation (purpose-driven or literal) is where the battle seems to take place between these two judicial ideologies, it seems the real difference lies in which form of liberty is emphasized. Breyer favors the right to governance, and Scalia protects the individual. In both situations it is a matter of balance, and Breyer remarks that in close to half the cases the Court receives the verdict is unanimous.

As an insight into Breyer's decision-making process, he introduces the reader to his "reasonable legislator". While thinking about a law, he imagines what this fictional character intended to establish when he wrote the law. Scalia fears this invites too much subjectivity into a jurors' profession. Personally, I agree with Breyer, and really learned a lot from this short book. In the past I had read Rehnquist's "The Supreme Court" and thought that, while agreeing with his logic, something was missing from his conclusions. At the time, I couldn't put a finger on it. Breyer hit this problem on the head when he writes "why should courts try to answer difficult federalism questions on the basis of logical deduction from text or precedent alone? Why not ask about the consequences..?" This book helped me to better develop my opinion on Constitutional interpretation, and I would recommend it to anyone.