The problem, here, is not only to defend one philosophy of the Constitution against another but also to bring out into the open the fundamental duality between the civic and the civil. Why remain willfully blind to one important dimension of the Constitution's federalism objective, that of active liberty? The impact of President Bush's appointments notwithstanding, liberalism is finally, at the level of ideas, pushing back. In it, Breyer explains the concept of liberty and its responsibilities and his belief in the Constitution as a living, changing document. To be fair, however, I don't think that's this book's intent. Granted, Justice Breyer posits his jurisprudence, one found on promoting the democratic purposes of constitutional government. In fact, the examples demonstrate the subjectivity inherent in a member of the judiciary making what are essentially legislative determinations. But I have a few problems with it.
The judiciary need not and, I would argue, should not do so. For this to happen, citizens must agree to such monitoring, and for this to happen, people must become real citizens, not merely apathetic consumers and shoppers which characterize most Americans today. Rather than embrace and defend liberal judicial action, he denies it and strangely pretends it's the other side doing it. It is this preposterous idea which has lately deluged Europe in blood. A book touching upon constitutional interpretation by a sitting Justice has to be of substantial interest to students of the Court. The First Amendment's language says that Congress shall not abridge 'the freedom of speech. Following a clerkship with Supreme Court Associate Justice Arthur Goldberg in 1964, Breyer became well-known as a law professor and lecturer Stephen Gerald Breyer is an Associate Justice of the U.
Occasionally opaque, Breyer's theories are easier to digest when he speaks them they're available openly on YouTube. This formula is expressed in a variety of ways, but that seems to be his main point. First, Breyer never explicitly defines what he means by democracy, although he clearly implies it has to do with citizen sovereignty. If you enjoy political commentary or you enjoy listening to talk shows, this book is might be for you. A long way into the future, since my reading list grows ever-longer each day. Breyer favors an approach to constitutional jurisprudence that would judge the constitutionality of laws by asking, among other things, whether the consequences of the law would increase Active Liberty. Breyer is smart than that.
But the people could continue to share sovereign authority; they could continue to participate actively in the governing processes. The interpretative approach is a broad-based approach, in terms of what factors are considered. But the question is whether, in context, such a limitation is prohibited as an abridgment of 'the freedom of speech. More libraries should buy it. But Breyer is neither persuasive nor especially clear. Most importantly, books like this give readers first-hand access to a Justice's thinking; this is can be more attractive than reading someone else's summary of a Justice's philosophy.
This method, which he calls Active Liberty, avoids some of the problems that seem to be inherent to originalism. But, has it always been this way? It is a distinction based on the recognition of the legitimacy of popular debate, thereby protecting political pluralism. And until Breyer more substantially articulates why these impulses merit more judicial attention than others that enliven the Constitution, active liberty seems to be a floating ideal insufficiently tethered to any express judicial method of interpretation. To the extent it is not more of a point-by-point refutation of the Scalia approach, it is a bit of a disappointment. The people would have to delegate the day-to-day work of governance.
For instance, in free speech, Breyer notes that an active-liberty outlook would have led the Court to support campaign finance laws controlling soft-money contributions. Why did they not, like Pennsylvania, approximate a closer-to-Athenian version of democracy? In a letter to Samuel Kercheval on July 12, 1816, eight years after he'd left the presidency of the United States, Jefferson wrote clearly and unambiguously his thoughts on the nature of our Constitution and the Founders' and Framers' opinion of it being a legal document or something that should change with the times. Constitution and the statutes passed by Congress must allow interpretation that maximizes the participation of the public. I think there are even more serious flaws with the Constitution. In particular, the chapter on Administrative Law most pertinent to my interests is excellent in regards to providing clear concrete cases to provide instr At first, this book seems more confusing than helpful -- theoretical vagaries are not very enlightening.
So Breyer's historical understanding is, at best, disputable. Unlike most ideological books, however, I think you will enjoy this one regardless of your own philosophy. The literalist approach seems self-limiting and actually more prone to subjectivity in that judges often create precise meaning from vaguely worded language. Regardless of the holes and inconsistencies this book is still a great read. Justice Breyer's Active Liberty makes a worthwhile contribution to this continuing debate. However, one case he discusses is an interesting recent court decision parsing the language and intent of the Federal Arbitration Act of 1925 p.
Maybe the book is more likely to be read by students of the law but it should be read by all of us and considered as it relates to our responsibility as citizens. I suppose the problem is that I want more from this book. Only lay down true principles, and adhere to them inflexibly. One of my objectives is to illustrate why one can, without philosophical contradiction, essentially embrace the later decisions without essentially abandoning the traditional attitude. The tradition answers with an attitude, an attitude that hesitates to rely upon any single theory or grand view of law, of interpretation, or of the Constitution. He also insists that the people, through participation in community life, can and must develop the experience necessary to govern their own affairs. Breyer has elsewhere been inspired along the same lines by another great French thinker Emmanuel Sieyès, father of the 1791 constitution, the first revolutionary-era constitution.
There is no plot, it is just a book stating his opinions. That's an interesting read nonsensical notion. It is to understand the amendment as seeking to facilitate a conversation among ordinary citizens that will encourage their informed participation in the electoral process. But this mechanism does not create a presidency free from democratic control. Despite his enormous focus on the electoral process described in the Constitution, he ignores that Article I Section 8 only enumerates a limited set of powers to the federal government, that the Tenth Amendment restricts the federal government to its delegated powers, and that the Ninth Amendment protects unlisted rights from being denied or disparaged. In this essay, Breyer explicitly casts himself as the heir of Benjamin Constant.