Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution
by Mark Vasco
Stephen Breyer’s Active Liberty: Interpreting Our Democratic Constitution (NY: Vintage, 2006) provides an insight on the decision-making process of a United States Supreme Court Justice. Breyer lists several factors that are examined in this process, including language, history, tradition, precedent, purpose, and consequences. Among these factors, Breyer considers purpose and consequence to be the most important. His thesis is that, “courts should take greater account of the Constitution’s democratic nature when they interpret constitutional and statutory texts” (Breyer, 5).
Breyer’s stance is primarily based upon his belief that the original constitution is too exclusive. He rejects the textual approach taken by many other judges because a literal reading of text can inhibit progress (Breyer, 101). Breyer understands the Framers’ goal as to, “secure the public good and private rights against the danger of (factionalism), and at the same time to preserve the spirit and form of popular government” (Breyer, 29). Accordingly, Breyer attempts to identify how a decision will impact active liberty, before he makes a ruling.
In Active Liberty, Breyer provides several real-world examples of how his philosophy is practically applied. Affirmative action is a particularly controversial subject, as the policy openly favors minorities. However, Breyer refutes the notion that the Constitution is colorblind. Instead, he endorses the idea that the Constitution is color conscious. “The Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination” (Breyer, 79-80). This stance is rooted in Breyer’s interpretation of how affirmative action effectively makes active liberty equally accessible for all Americans.
The main problem with Breyer’s approach is that it can be too subjective. Breyer addresses and attempts to refute this critique at the end of his book, but I remain unconvinced. He claims that his knowledge and involvement enable him to accurately foresee consequences of a ruling. This may be true, and personally, I do agree with many of his views, such as his stance on affirmative action, but maybe that doesn’t matter. Maybe what only matters is basing a ruling on the wording of the Constitution. If there is a flaw in the Constitution, such as its exclusivity, then maybe the Constitution needs to be altered. Obviously changing the Constitution is no easy task, but it might be safer than attempting to circumvent its wording. I don’t think Breyer is doing any harm to our country. However, a different judge with a similar approach could potentially be dangerous. Straying away from a literal interpretation opens the door for subjective approaches that may not be as beneficial as Breyer’s interpretation.
As a Social Studies teacher, this book has many practical uses in the classroom. Understanding and even debating Breyer’s philosophy can be a very suitable topic in a government class. For students, Active Liberty offers a valuable firsthand account of the practical function of a United States Supreme Court Justice. His book displays how a prominent government official is actively taking steps to ensure that power remains with the American people. Accordingly, we as American people must ensure that we are utilizing this power, and we as teachers must ensure that our students are aware of this power.
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