Book Description
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.
Customer Reviews:
A insightful look at a incoherent method of judicial interpretation.......2007-10-05
Justice Bryer is the most dangerous justice on the Supreme Court. Time and time again, Bryer fails to declare laws that are unconstitutional, unconstitutional. Among the justices, Bryer declares the fewest laws unconstitutional. Out of context, this means little, if anything; however, the reasons for his actions, as outlined in this book, should be terrifying to any American that cherishes individual liberty. As other reviewers have noted, Bryer believes the constitution is essentially democratic, and his job as a judge is to encourage pragmatic decisions by the political branches. This view is inconsistent with the constitution, and Bryer's own opinions. It is inconsistent with the constitution because constitutional rights exist because those rights are not to be sacrificed to the majority. But Bryer's view requires exactly this. For example, Bryer has refused to uphold the Fourth Amendment, First Amendment, the Fifth Amendment, the Equal Protection Clause, and Federalism.... I could go on and on. The point is what Bryer refers to as judicial restraint is actually judicial negligence, because it is negligent for a judge not to do his solemn duty: uphold the constitution. Ironically, Bryer's view of an essentially democratic constitution contradicts his own judicial opinions. As noted above, Bryer has refused to protect enumerated rights of the constitution, often citing that he is encouraging the public's right to choose - I'd point out that oppression (denying fundamental rights) is not a right. But when it comes to unenumerated rights, Bryer has no problem taking those out of the political process. But wait, you say, I thought Bryer was suppose to encourage democracy; how does this fit in with his view of active liberty? The answer is it doesn't. Bryer has made up a method of interpretation that justifies some of his illogical decisions, but not all. To wit, abortion. An article in the Washington Post by Roger Pilon argues persuasively that abortion should be left to political branches (I've summarized it on wikipedia under Roger Pilon). Yet Breyer feels that concerning abortion, the constitution somehow becomes not what HE (emphasis added) claims it to be: essentially democratic, but the opposite, anti-democratic. I'm not arguing that abortion isn't protected by the constitution, but I am arguing that Bryer, who asserts that the constitution is essentially democratic, is a hypocrite when he asserts the right to choose to have an abortion is out of the political process.
I gave this book four stars because I think it is important for Americans to read and try to understand a very influential judge.
Love It or Hate It, It's Honest and Interesting.......2007-05-24
With many idealogical books, you will likely love them or hate them based on your own idealogy. Unlike most idealogical books, however, I think you will enjoy this one regardless of your own philosophy. Breyer clearly states his own method of constitutional interpretation and comes off as completely genuine.
Unfortunately he's often defending the indefensible. How in the world can sexual assault be considered interstate commerce? What about gun possession in a school zone as interstate commerce? Ludicrous! Yet Breyer clearly explains how he got there.
He tries to explain that he weighs the right of the people to govern themselves (democracy) against individual liberty. Sounds catchy. But wait... outside of a law that directly inhibits democracy doesn't that mean he can pick and choose which way to go on any other issue? He can uphold any law he wants by justifying it as democracy. Or he can strike down any law he wants as promoting individual liberty. How does he decide? To detractors the answer is obvious... he substitutes constitutional law with his own personal preference. Don't take my word for it though, read the book and decide for yourself. Is he really interpreting the constitution or just legislating from the bench?
Regardless of the holes and inconsistencies this book is still a great read. It's clear, concise, and Breyer lays it out there with an intellectual honesty you have to respect even if you don't embrace. Definitely read Scalia's Matter of Interpretation to get another approach used by Justices on the Supreme Court.
Short volume which is a reworking of a series of lectures.......2007-05-17
I had the pleasure of hearing Associate Supreme Court Justice Stephen Breyer speak. He's an engaging speaker, warm and funny. In preparation for his appearance I read his latest book, Active Liberty, a short volume which is a reworking of a series of lectures he gave at Harvard in 2001. In it, Breyer explains the concept of liberty and its responsibilities and his belief in the Constitution as a living, changing document. He also explains how the Supreme Court works, how it should work and how people whose opinions are sometimes diametrically opposed can still work together in a civilized manner, retaining respect for one another. The book reads like a lecture and the prose is not particularly colorful, yet this is a valuable book and the author presents a number of opinions that are surprising given his perceived political leanings.
Road to Serfdom.......2007-04-25
The "active liberty" advocated by Justice Breyer is another term for "passive tyranny." He substitutes his own personal moral judgment as opposed to ruling on the text of the Constitution. I don't care how Justice Breyer feels about an issue. A judge should not impose a moral viewpoint when the text of a law is silent. The Constitution can be amended as it has been 27 times before. But amendments are difficult to pass, as they should be, and those of Justice Breyer's political philosophy do not trust the people to get it right so they create terms like active liberty to confuse the uninformed. For those who agree with Justice Breyer I would like to play them in poker, with "active rules" which "grow" and "evolve" during the course of the game so that I can win every hand. You would be a fool to agree to play a game of poker with evolving rules and likewise should reject Justice Breyer's notions of "passive tyranny."
The Pro-Democracy Approach, Perspective, and Emphasis of Justice Breyer.......2007-04-02
The U.S. Supreme Court is seen by some as one of the most elitist of institutions. But the author of this book believes that it should be used for the most democratic of purposes.
The author contrasts active liberty--the freedom to actively participate in creating the shape and substance of governmental power, "sharing a nation's sovereign authority with its people--with the conservative ideal of negative liberty, protecting the public from the government. Both have their place, he says, but the the judicial interpretive decision-making process needs a greater emphasis on how a bill fosters active liberty.
"The people must have room to decide and leeway to make mistakes, " the author writes. If it is clear what the legislative intent was in a particular case, the court should seek to follow it, the author says. If it is not clear what the enacting legislative body sought to accomplish, then the court should adopt a "reasonable legislator" standard to seek to determine what was meant.
The author finds this far preferable to the approach advocated by others--the unnamed Justices John Scalia and Clarence Thomas, for instance--who seek to discern solely from the text what was meant. Legislators who write the bills may not be aware of the principles of statutory construction, the author writes, and so the court should not seek to enforce them over clear legislative intent. "And in the real world," the author writes, institutions and methods of interpretation must be designed in a way such that the form of liberty is both sustainable over time and capable of translating the people's will into sound policies."
The author approvingly quotes Judge Learned Hand as saying that the "spirit which seeks to understand the minds of other men and women," the "spirit which weighs their interest alongside its own without bias," is the "spirit of liberty itself." He quotes Justice Louis Brandeis as saying "we must ever be on our guard lest that we elect our prejudices into legal principles." Brandeis also wanted a judge to avoid being "wooden in uncritically resting on formulas in assuming the familiar to be the necessary, in not realizing that any problem can be solved if only one principle is involved but that ultimately all controversies of importance involve if not a conflict at least an interplay of principles."
The author believes the principle of democratic participation in government is eternal. "(T)he framers...wrote a Constitution that begins with the words "We the People." The words are not "we the people of 1787."
Rather their words, legal scholar Alexander Meiklejohn tells us, mean that "it is agreed, and with every passing moment it is re-agreed, that the people of the United States shall be self-governed." A self-governed people, the author makes clear, are free to go beyond the precise meanings their controlling document had at the time of its adoption over 200 years ago.
"In sum," the author states, "our constitution has been a quest for workable government, workable democratic government, workable democratic government protective of individual personal liberty. Our central commitment has been to "government of the people, by the people, and for the people....(T)his constitutional understanding helps interpret the Constitution--in a way that helps to resolve problems related to modern government."
The author takes pride in the constructive development of federal and state constitutions over time. He notes the radical Pennsylvania constitution of the late 1700's "that abolished the position of governor, substituting a twelve-member elected council; created a unicameral legislature with one year terms; imposed four year term limits; insisted that all public decision-making take place in public; and provided for a board of censors, a kind of statewide grand jury with separately elected members who would investigate all actions by the legislature and report to the public...."
But he notes that this "closer to Athenian version of democracy" soon failed. "Pennsylvanians found," he said, "that their government enacted conflicting policies, reflecting the vagaries of shifting public opinion, that through debt repudiation it had produced an insecure climate for business, and that those within government--a continuously changing group, were often at war with one another."
The author finds modern appplications of the principle of active liberty in six modern areas: speech, federalism, privacy, affirmative action, statutory interpretation,and adminstrative law. These discussions are perhaps briefer than they ideally would be, but they suffice to get the major point across.
Speech is an extremely broad topic: it includes warranties on labels, disclosure of information in securities laws and consumer protection laws, health laws forbidding tobacco advertising to children, discrimination laws banning statements of intent to discriminate, communication laws requiring cable broadcasters to provide network access, and campaign finance laws restricting citizen contributions to candidates. Different applications require different remedies: a one size fits all rule of speech can never be restricted in any cirucmstance would greatly limit many worthwhile democratic purposes.
"My argument," the author concludes after a detailed discussion of cases in numerous areas touching on free speech, "is that,in applying First Amendment presumptions, we must distinguish among contexts, and forms of speech. Reference to basic constitutional principles can help generate the relevant distinctions. And reference back to at least one general purpose, active liberty, helps both to generate proper distinctions and also to properly apply the distinctions generated. The active liberty reference helps us to preserve speech that is essential to our democratic form of government, while simultaneously permitting the law to deal effecitve with such modern regulatory problems as campaign finance and product or workplace safety."
The author's discussion of federalism embraces the regulation of toxic chemicals, the regulation of gun purchases, the ability of the federal government to commandeer local officials to enforce federal laws, improper state use of the intellectual property of others, toxic wastes,
tax assessments, Congress' Commerce clause powers relating to gun possession and violence against women, and issues of the "dormant Commerce Clause."
The author believes that more Congressional oversight and action is needed in these areas. "I am pointing to the Constitution's democratic objectives, explaining the complexity involved in attaining these objectives when modern technology is at issue, noting the related tension between these objectives and the recent cases, and suggesting that proper resolution of many such federalism issues cannot be left to the judiciary alone. There are likely better ways."
The author defines privacy to mean "a person's pwer to control what others can come to know about him or her." Privacy issues include trespass, wiretapping, eavesdropping, search and seizure statutes, personal data protection, video camera regulation, regulation of scanners and interceptors, customer purchasing profiles, medical records protection, genetic makeup of individuals, cell phone converstations, thermal imaging devices, and the meaning of reasonable expectations of privacy.
"The privacy example," the author writes, "...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 twnety-first century court to apply the document's underlying values. At a minimum it suggests that courts, in determining the breadth of a constitutional holding, should look at the effect of a holding of a certain breadth on the ongoing policy-creating process. They should distinguish for these purposes between, say the "eavesdropping" and the "thermal imaging" kinds of cases.
"The example also makes it clear," the author concludes, that it is misleading to contrast "practical" and "legal" judicial concerns. In exercising caution, a judge is not deserting the judicial role of law interpreter in order to be practical. Rather, the judge is following the law, interpreting the Consitution in light of its own practical concern for an active liberty that is itself a practical process. That is to say, the Constitution authorizes courts to proceed "practically" when they examine new laws in light of the Constitution's enduring values."
In discussing affirmative action, the author focuses intently on the 2003 case that renewed, it, redefined it, and in different wasys restricted and expanded it. The Court re-affirmed that the Constitution could take account a a person's color in remedying past discrimination or achieving other worthwhile social objectives. Breyer approvingly quotes Justice Ruth Bader Ginsburg--"Actions designed to burden groups long denied full citizenship stature are not so sensibly ranked with measures taken to hasten the day when entrenched discrimination and its after effects have been extirpated"--and Judge John Minor Wisdom--"Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination."
"When faced with one interpretation of the Equal Protection Clause that, through efforts to include, would facilitate the functioning of democracy and a different interpretation of the Equal Protection Clause that, trhough perceived exclusion, might impede the functioning of democracy, is it surprising that the Court majority chose the former?....(I)t is not surprising that that the Court interpreted the Equal Protection Clause in a way that diminishes the risk of serious racial division--a division that exclusion from elite educational institutions would aggravate....Sometimes reference to active liberty can help a court choose between competing interpretations of constitutional provisions that, on their face, seem based upon other values. Gutter shows how this is so."
The author's examination of statutory interpretation "contrasts a literal text based approach with an approach that places more emphasis on statutory purpose and congressional intent. It illustrates why judges should pay primary attention to a statute's purpose in difficult cases of interpretation in which language is not clear. It shows how overemphasis on text can lead courts astray, divorcing law from life--indeed, creating law that harms those whom Congress meant to help. And it explains why a purposive approach is more consistent with the framework for a "delegated democracy" that the Constitution creates."
This chapter uses cases dealing with the Foreign Services Immunities Act, the Federal Arbitration Act, and the federal habeas corpus statute as examples. The author favors the use of a "reasonable legislator" standard
to guide the courts when the leislative intent of a given statute as related to a particular problem is not clear because this standard "helps statutes mjatch their means to their overall policy objectives, a match that helps translate the popular will into sound policy. An overly literal reading of a text can too often stand in the way."
His final example of the value of the concept of active liberty lies in administrative law. "To achieve our democratically chosen ends in a modern populous society requires some amount of administration, involving administrative, not not democratic, decision-making. To achieve these same ends in a technologically advanced society requires expertise....Without delegation to experts, an inexpert public, possessing the will, would lack the way. The public understands this fact....As classically conceived, administrative law helpos to implement the legislature's choice of when and how to delegate decision-making to administrators and experts."
The author focuses upon the principle of judicial "deference" to agency interpretation of statutes, a principle that transfers the interpretive function from the judicial branch to the executive branch. Chevron USA v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) is well-dissected for this analysis. The author favors treating the judicial deference this holding requires "not as an absolute rule, but as a rule of thumb."
The author finds that "In all likelihood a hypothetical reasonable member of Congress would have decided the delegation/deference question so as to help the statute work better to achieve its ends. And these ends usually reflect the general desires of the public....Active liberty provides a democratic rationale for better functioning administrative law."
In summarizing his argument after completing his examples, the author makes clear that "I am not arguing for a new theory of constitutional law....I have argued for a greater awareness of and emphasis upon, the Constitution's democratic imperative....(to)help Americans remain true to the past while better resolving their contemporary problems of government through law."
In the final section of his book, entitled "A Serious Objection," the author takes on the "textualists" and "originalists"--colleagues and scholars generally of the radically conservative persuasion who would strongly dispute his blandly presented views. For those who find conflict essential to understanding differences of ideology and nuance, this is the best section of the book, even though it carefully avoids mentioning the names of the author's adversaries or engaging in any personal attacks on them.
"Why do I point out the uncertainties, in close cases, of linguistic structure, of canons of interpretations, and of history," the author asks rhetorically. "Because these difficulties mean that the "textualist," "originalist," and "literalist" approaches themselves possess inherently subjective elements. Which linguistic characteristics are determinative? Which canons shall we choose? Which historical account shall we use? Which tradition shall we apply? And how does that history or tradition apply now?....I do not believe that textualist or originalist methods of interpretation are more more likely to produce clear workable legal rules....Nor is clarity exclusively promoted through use of rules....(I)nsistence on clear rules can exact a high constitutional price...."
The author concludes that "the Constitution is not a document designed to solve the problems of a community at any level--local, state, or national. Rather it is a document that trusts people to solve these problems themselves. And it creates a framework for a government that will help them do so. That framework forsees democratically determined solutions, protective of the individual's basic civil liberties. It assures each individual that the law will treat him or her with equal respect. It seeks a form of democratic government that will prove workable over time."
The author's book can be read on different levels: as a brief overview of a moderately liberal justice's view of constitutional law, or as a detailed outline of the same. Reading it the former way can be done at one sitting, but agonizing over the detailed meanings of the many fine distinctions the author makes can take a long time.
This is a great book for those involved in the legislative process at state, local or federal levels, and those seeking to better teach or learn the law. The author writes not a call to arms, but a plea for an awakening of a new understanding. Justice Breyer lacks the outspokenness of Justice William O'Douglas, and the bridgebuilding issue-oriented passion of Justice William Brennan. But he has a zeal for the enabling of an active public role for the citizens of our country, and this book places that zeal in the context of how our Constitution functions and should function.
Product Description
1) The Future of Ideas: The Fate of the Commons in a Connected World / 3) Active Liberty: Interpreting Our Democratic Constitution / 3) The Revolution Will Not Be Televised: Democracy, the Internet, and the Overthrow of Everything / (Unboxed Set of Books), in either Hard or Softcover, (See Seller Condition Comments), Shipped in one package to
save on shipping costs.
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Limited Edition, SIGNED by the author.
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Signed by United States Supreme Court Justice Stephen Breyer on special page prepared for that purpose. Full leather binding with gilt lettering and decoration, silk end papers, gilt page edges and marker ribbon.
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Democratizing the constitution.(Active Liberty: Interpreting Our Democratic Constitution)(Book review) : An article from: Policy Review
Peter Berkowitz
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Citation Details
Title: Democratizing the constitution.(Active Liberty: Interpreting Our Democratic Constitution)(Book review)
Author: Peter Berkowitz
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Policy Review (Magazine/Journal)
Date: December 1, 2005
Publisher: Thomson Gale
Issue: 134
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This digital document is an article from New Criterion, published by Thomson Gale on February 1, 2006. The length of the article is 2738 words. The page length shown above is based on a typical 300-word page. The article is delivered in HTML format and is available in your Amazon.com Digital Locker immediately after purchase. You can view it with any web browser.
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Title: Enforcing a "mood".(Books)(Active Liberty: Interpreting Our Democratic Constitution)(Book review)
Author: Robert H. Bork
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New Criterion (Magazine/Journal)
Date: February 1, 2006
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Volume: 24
Issue: 6
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This digital document is an article from Commonweal, published by Thomson Gale on December 16, 2005. The length of the article is 3064 words. The page length shown above is based on a typical 300-word page. The article is delivered in HTML format and is available in your Amazon.com Digital Locker immediately after purchase. You can view it with any web browser.
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Title: How Should Judges Judge?(Active Liberty: Interpreting Our Democratic Constitution)(Book Review)
Author: Bernard G. Prusak
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Commonweal (Magazine/Journal)
Date: December 16, 2005
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Volume: 132
Issue: 22
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This digital document is an article from The Weekly Standard, published by Thomson Gale on January 16, 2006. The length of the article is 3357 words. The page length shown above is based on a typical 300-word page. The article is delivered in HTML format and is available in your Amazon.com Digital Locker immediately after purchase. You can view it with any web browser.
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Title: It Takes an Intellectual; To misconstrue the Constitution.(Active Liberty: Interpreting Our Democratic Constitution)(Book review)
Author: John J., Jr. DiIulio
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Judicial immodesty.(Book review): An article from: Modern Age
Cory L. Andrews
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Title: Judicial immodesty.(Book review)
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- Now there's a bird I'd like to get on my life list !
- Usefull to listers and birders.
- There is something here for most dedicated birders
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America's 100 Most Wanted Birds
Steven G. Mlodinow
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Amazon.com
If you want to see a gyrfalcon or a fork-tailed flycatcher, this resource might be your best help in spotting them. Mostly for serious birders intent on adding species to their life lists, America's 100 Most Wanted Birds provides detailed strategies for locating 100 of the most uncommon-to-rare bird species in the lower 48. Driving directions are included for locating species that can generally be counted on to show their feathers in a certain area (like the gyrfalcon); the rest are dealt with more generally in relation to when and where they are most apt to appear.
Book Description
Here's how to find 100 of the rarest birds in the contiguous United States. America's 100 Most Wanted Birds is your complete guide to finding Ross' Gull, Kirtland's Warbler, Lucifer Hummingbird, Blue-footed Booby, and 96 others. No serious birder's library should be without it. Authors Steven G Mlodinow and Michael O'Brien, two of the country's top birders, have done exhaustive research on each bird and presented it in an easy-to-use format. Each species description includes information on present status and distribution, patterns of occurrence, favored locations, identification, and your best bets for a successful sighting. A special Site Guide gives you the latest information on the hottest birding areas in the country-all the important information you need to plan your next birding trip.
Customer Reviews:
Now there's a bird I'd like to get on my life list !.......2005-12-16
This is a rather unusual 'Bird Book'and certainly not a book someone just starting out in Birding would find very helpful.In the first few years of birding one finds new birds to see without chasing all over North America,to find rare birds listed in this book.However;that being said the book makes for interesting reading as to what are some of the most sought after birds that Birders are on the search for as their North America life list grows past the 500's.
What birds were included could be debated.Some are quite easily found at the right time and location while others require a lot of effort unless staked out,or on an up-to date Hot Line posting.The birds included are very well described ,with excellent directions and information on occurrence.
Even if one were not intending to chase down all these birds,it is certainly a good book covering these prized additions and where one might find them.This is not a book you would take with you during a day of birding;but certainly a great asset to turn to if you are planning a trip away from your normal surrounds and want to make sure you know about and hopefully add one of these birds to your list.
Although the book limits itself to the Lower 48 states,it is still useful to birders who keep an ABA list,although directions and details are not provided outside the Lower '48'.
All in all,a great book for an avid birder whose birding ranges over the ABA.
Usefull to listers and birders........1998-07-29
This book is usefull to birders and listers in delineating how to seek out some of the more unusual avian visitors to the US. At times though you wonder if the information provided would truly help you "get" the bird.
There is something here for most dedicated birders.......1997-06-02
While there is something here for everyone, there is also info that people won't want. The choice of limiting the scope of the book to the lower 48 is interesting. It makes all the locations (relativly) accessable. It also means that some birds which are included (like Ross' Gull) are difficult to pin down in the lower 48 (they can point to no pattern of occurence) but are definitly finadable in North America (Churchill, Canada in this case).
The rarity of the 100 birds varies greatly. There are many birds which are so rare that no pattern of occurence can be given, while others are quite regular in certain areas (ie Pacific Golden-Plover). The book is most usefull for the rare birds which show clear patterns of occurence (like Tuffted Duck in the San Fransico Bay Area or Cook's and Stejneger's Petrels of the California coast). This book is just usefull for listers. Each description includes information on ID, which can be very difficult to find on some of these rare species.
Is this book a must have? No. But for many birders, who seem to lust after every bird book on the planet, this book is a usefull addition to a personal collection.
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