Justice Stephen Breyer’s Active Liberty

With all this fol-de-rol surrounding the appointment of a new Supreme Court justice, I thought it might be time to read a little about the court. With the Roberts Court being so committed to “originalism,” I further thought that it might be good to read what one of the liberals had to say. Fortuitously, I’d read something about Breyer’s Active Liberty recently, so decided to seek that one out.

It’s a slim book, only around 130-ish pages, and most of the meat is in the last few sections. In these, Breyer lays out an alternative theory to originalism, and offers a critique of originalism’s shortcomings. He argues that the primary purpose of the Constitution (as seen by its framers) was to balance what writers at the time called “ancient” and “modern” liberty. “Ancient liberty” – what we’d call today positive or active liberty – was the right to participate in one’s government, while “modern liberty” – known today as negative liberty – was the right to be left alone, protected from the tyranny of the majority. Breyer’s contention is that we’ve lost sight of the need to protect active liberty, and that this has been in large part the fault of a flawed scheme of constitutional interpretation.

There’s really not much more I can write here without simply recapitulating Breyer’s arguments. There’s a large section of the book looking at the idea of active liberty as applied to actual cases, and those are interesting. The real meat of the book, however, and the bit I’m going to sign off with, is Breyer taking on originalists:

Why would the Framers, who disagreed even about the necessity of including a Bill of Rights, nonetheless have agreed about what school of interpretive thought should prove dominant in interpreting that Bill of Rights in the centuries to com?

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