On "Active Liberty"

Associate Justice of the Supreme Court Stephen Breyer has just penned a book entitled “Active Liberty: Interpreting Our Democratic Constitution.

This book, based on the Tanner lectures on Human Values that Justice Stephen Breyer delivered at Harvard University in November 2004, defines the term “active liberty” as a sharing of the nation’s sovereign authority with its citizens. Regarding the Constitution as a guide for the application of basic American principles to a living and changing society rather than as an arsenal of rigid legal means for binding and restricting it, Justice Breyer argues that the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems.

I finished the book over the weekend and thought it was a great primer for the layperson on how to interpret the Constitution. In the prologue, Breyer laments that many young people could more easily name the three stooges than the three branches of government. He hopes that this book could turn that around.

The book could also be viewed as pointing out flaws in the strict constructionist view of interpretation. In brief, Breyer says that interpretation should look to the purpose of the law first. Reading the language blind to it’s purpose leads to impractical rulings. Breyer has many examples in the book. Consider this one: Reading the free speech clause could give one the impression that a person could say whatever they wanted. A strict constructionist view would say they could yell fire in a crowded theater. However, if you look to the purpose of the free speech clause, you will find that it was not meant to allow individuals to incite mass hysteria. As we all know, there are some limitations on the Free Speech clause that are acceptable because they do not take away from the purpose of the clause.

Breyer does not touch abortion but comments on how his purpose driven interpretive philosophy has been applied in affirmative action, privacy, federalism, and campaign finance cases. And to round out our abortion debate for the week: How would his philosophy relate to the abortion debate? Is the purpose behind the privacy clause in the Constitution broad enough to encompass a woman’s right to choose? Where would the right to life be found in the Constitution?