Active Liberty: Interpreting Our Democratic Constitution
Language: English
Pages: 176
ISBN: 0307274942
Format: PDF / Kindle (mobi) / ePub
A brilliant new approach to the Constitution and courts of the United States by Supreme Court Justice Stephen Breyer.For Justice Breyer, the Constitution’s primary role is to preserve and encourage what he calls “active liberty”: citizen participation in shaping government and its laws. As this book argues, promoting active liberty requires judicial modesty and deference to Congress; it also means recognizing the changing needs and demands of the populace. Indeed, the Constitution’s lasting brilliance is that its principles may be adapted to cope with unanticipated situations, and Breyer makes a powerful case against treating it as a static guide intended for a world that is dead and gone. Using contemporary examples from federalism to privacy to affirmative action, this is a vital contribution to the ongoing debate over the role and power of our courts.
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New legal categories but rather to fit new technology into old categories. It was less likely that doing so would interfere with any ongoing democratic policy debate.6 The privacy example suggests more, in respect to judicial caution. It warns against adopting an overly rigid method of interpreting the Constitution—placing weight upon eighteenth-century details to the point at which it becomes difficult for a twenty-first-century court to apply the document’s underlying values. At a minimum it.
Conventions alone could provide interpretations likely to reflect congressional purposes. But in the world as it is, we shall do better to use whatever tools best identify congressional purpose in the circumstances. Use of a “reasonable legislator” fiction also facilitates legislative accountability. Ordinary citizens think in terms of general purposes. They readily understand their elected legislators’ thinking similarly. It is not impossible to ask an ordinary citizen to determine whether a.
Decision-making, he is more likely to be disciplined in emphasizing, for example, constitutionally relevant consequences rather than allowing his own subjectively held values to be outcome determinative. In all these ways, a focus on consequences will itself constrain subjectivity. Here are examples of how these principles apply. The First Amendment says that “Congress shall make no law respecting an establishment of religion.” I recently wrote (in dissent) that this clause prohibits government.
Room to decide and leeway to make mistakes. For another, the people themselves should participate in government—though their participation may vary in degree. Participation is most forceful when it is direct, involving, for example, voting, town meetings, political party membership, or issue- or interest-related activities. It is weak, but still minimally exists, to the extent that it is vicarious, reflected, say, in the understanding that each individual belongs to the political community with.
Restrain a citizen’s “modern liberty” to speak, would lump together too many different kinds of activities under the aegis of a single standard, thereby creating a dilemma. On the one hand, if strong First Amendment standards were to apply across the board, they would prevent a democratically elected government from creating necessary regulation. The strong free speech guarantees needed to protect the structural democratic governing process, if applied without distinction to all governmental.