It matters not which judicial approach you subscribe. Taken from his Harvard University Tanner Lectures On Human Values 2004-2005, the new book by Associate Justice Steven Breyer, “Active Liberty: Interpreting Our Democratic Constitution”, weighing in at 135 pages, is a worthy read.
Active Liberty takes its title from a distinction made by political philosopher Benjamin Constant between “the liberty of the moderns” and “the liberty of the ancients.” Modern liberty is the sort traditionally associated with the Bill of Rights—freedom from government telling you what to say and how to live. Ancient liberty or Active liberty, is “sharing the Nation’s sovereign authority among the Nation’s citizens” by active and constant participation in collective power.
Further, Justice Breyer argues for judicial modesty as judicial restraint, making room for democratic decision making and response while emphasizing greater attention and not a new theory.
In defining a set of factors that shape decisions, Justice Breyer provides the reader a window into the process. Justice Breyer uses the factors of, language, history, tradition, precedent, purpose and consequence as the backdrop and context for the discussion of six example Constitutional areas:
- Speech
- Federalism
- Privacy
- Equal Protection
- Statutory Administration
- Judicial Review
In part II of this review, we will look into highlights of the examples and finish off with Justice Breyer’s case and conclusion against the “originalist” and “strict constructionist ” approach.
Stay tuned.
Cross posted from – Today’s Democracy