Breyer's Active Liberty Approach

Paper Summary:

The paper discusses how US Justice Stephen Breyer takes issue with originalism as an approach to interpreting the US Constitution and advocates what he calls active liberty, which is a far more activist way of interpreting the Constitution. The paper also describes the intellectual profile of Justice Breyer in the context of his work, his life, his writing and his peers and argues that Justice Breyer's active liberty perspective is a useful one for dealing with the complex constitutional issues that arise in our dynamically evolving society.

From the Paper:

"Many of the provisions of the Constitution are somewhat vague. Indeed, it is notoriously difficult to write legislation that is entirely unambiguous in all situations. This means that at times, a judge's task of interpreting and applying the law can seem more like an art than a science. Some judges favour textualism, which means that they try as hard as possible to stick to the letter of the laws as written. For example, Justice Antonin Scalia advocates "originalism," meaning that the courts should attempt to stick to the original meaning of constitutional texts (Ryan). However, other judges tend to be more activist, and have even been accused of using their position to pursue their own agenda, in effect legislating from the bench. "

Sample of Sources Used:

• Breyer, Stephen. Active Liberty: Interpreting our Democratic Constitution. New York City: Knopf, 2005
• Gewirtz, Paul. "Active Liberty: Interpreting Our Democratic Constitution." Yale Law Journal 115.7 (2006): 1675+.
• Totenberg, Nina. "Supreme Court Justice Breyer on Active Liberty." National Public Radio. 30 Sept. 2005. Retrieved from http://www.npr.org/templates/story/story.php?storyId=4929668
• Ryan, James E. "Does It Take a Theory? Originalism, Active Liberty and Minimalism." Stanford Law Review 58.5 (2006): 1623+.
• Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton University Press, 2003.

More papers on Breyer's Active Liberty Approach:

• Analytical Essay # 134761 : "Justice Breyer's "Active Liberty" Approach"
• Analytical Essay # 6179 : "On Liberty"
• Analytical Essay # 142963 : "Are Equality and Liberty Compatible?"

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