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ACTIVE LIBERTY: A PROGRESSIVE ALTERNATIVE TO TEXTUALISM AND ORIGINALISM?
by Judge Michael W. McConnell [ Full Text ] |
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119 Harv. L. Rev. 2387 (2006)
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| ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION. By Stephen Breyer. New York: Alfred A. Knopf. 2005. Pp. x, 161. $21.00. |
| In a slim volume entitled Active Liberty: Interpreting Our Democratic Constitution, Justice Breyer articulates an approach to constitutional interpretation based on what he calls the principle of “active liberty.” He offers the approach as a counterpoint to the conservatives’ textualism-originalism, which he forcefully criticizes in the final chapter of the book. Less obviously but perhaps more importantly, Justice Breyer’s active liberty approach is also a counterpoint to a prominent form of progressive constitutionalism associated with the Warren Court, which often goes by the label of a “Living Constitution.” This is the idea that judges should interpret the broad provisions of the Constitution in light of modern needs and values, as discerned by the judges themselves. In the words of one eminent exponent of this view, Professor Ronald Dworkin, “judges must answer intractable, controversial, and profound questions of political morality that philosophers, statesmen, and citizens have debated for many centuries, with no prospect of agreement” and “the rest of us must accept the deliverances of a majority of the justices.” I call this the “moral-philosophic” approach. It is not so much a theory of interpretation as it is a theory of who should make fundamental moral decisions for the Nation: the nine Justices of the United States Supreme Court.
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| Justice Breyer’s argument comes in two steps. First, he makes a historical argument that “the Constitution [is] centrally focused upon active liberty, upon the right of individuals to participate in democratic self-government” (p. 21), which he believes “the current Court” has “underemphasiz[ed]” (p. 11). Second, he argues that this premise can serve as “a source of judicial authority and an interpretive aid” that “helps make sense of our Constitution’s structure” and “can bring us closer to achieving the proper balance” between democratic authority and individual liberty (p. 6).
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| This is potentially an important endeavor; we must see whether it succeeds. [ More ] |
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