by Stephen Breyer
|
| List Price: | $12.95 |
| Amazon Price: | $10.36 & eligible for FREE Super Saver Shipping on orders over $25. |
| You Save: | $2.59 (20%) |
| Average Rating: |  |
| Lowest New Price: | $7.34 |
| Availablitiy: | Usually ships in 24 hours |
|
 |
|
Product 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.
Customers who bought this item also bought
Average Customer Review:
1 of 1 people found the following review helpful:
 Cerebral Excuse Making, 2008-11-12
The next time I read about a decision by the Supremes that leaves me scratching my head and wondering, "What were they thinking?", I've at least got this little book by Justice Breyer to give me one or two clues. ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION is a blueprint explaining the components of judicial activism, and pleads its argument against what Breyer terms Constitutional "textualists."
The foundation of Breyer's premise has to do with the democratic compatibility of "ancient", or active liberty (the inclination of citizens to participate in self-government), and "modern" liberty (the protection of individual rights and freedoms). Once these two liberties are balanced, judicial decisions must be rendered based on the Constitution's "democratic objective." But what is the democratic objective? Upon reading this book, it becomes readily evident a conservative textualist (Justice Scalia, for example) can tell you what the Constitution says, and what its objective is--but an active libertarian will interpret the document to conform to the events of the day based upon precedent, societal/cultural conditions, and consequences. In other words, as Justice Breyer argues, affirmative action is good in some cases, bad in others; the posting of the Ten Commandments is wrong in one venue, but perfectly acceptable in another. Such judicial selective subjectivity is a necessity, argues the progressive jurist, based on a country that is in constant change.
So we arrive at the conclusion: A Living Constitution is just like having your cake, and eating it, too. If there's a screw-up, we can always come down on the other side of a decision tomorrow. Live and learn. ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION is a quick, if not troubling read. Con: We see, firsthand, how the progressive jurists can stretch and distort any issue to conform to "Constitutionality"; Pro: We get up close and personal into the mental machinations of a Supreme Court justice. Kind of scary, but interesting, too.
--D. Mikels, Author, The Reckoning
0 of 0 people found the following review helpful:
 Excellent discussion of judicial philosophy, 2008-11-11
Justice Breyer clearly lays out the differences in philosophy between "textualists" or "orginalists" on the Supreme Court and those who view things in context and in the changed world. It is an effective counter to Justice Scalia, well worth reading.
3 of 3 people found the following review helpful:
 It wouldn't be nice to "dis'" a Supreme Court Justice, 2008-09-03
Justice Stephen Breyer, in this short book, clearly describes his judicial philosophy. "Short" is one of the aspects recommending "Active Liberty." The non-lawyer reader might find some of Justice Breyer's explanations a bit involved and sometimes less well defined, and the professional attorney reader might find the text a bit too easy, though some attorneys could take a lesson in brevity from this work! The author spends his book space explaining his view of the tension between "active liberty" and "modern liberty," between "textualism" and the previous two "liberties," and between "judicial modesty" and something he doesn't name particularly well ("judicial IMmodesty"?). He does this using six actual cases, and a few hypothetical examples.
Frankly, a discerning reader could wonder if much of those "tensions" mentioned above are made-up differences. Equally frankly, Justice Breyer tells us that such tensions are his view of the real bread-and-butter Supreme Court legal work. He freely admits to the subjectiveness which his viewpoint influences Supreme Court decisions, and points out that more textual (objective, narrower) approaches also contain subjectivity. True enough. But narrower and more objective approaches deal with Constitutional terms like "due process," "just compensation," and "public use." These ought to busy our justices enough without being concerned with guessing future outcomes or majority wishes, or other matters best handled by the lawmaking arm of our government. Mr. Justice Breyer's approach at times seems like an excuse to be less exact on formal decisions - justified inconsistency [the last sentence is merely an opinion by this reviewer!]
Nevertheless, where else can one pick up a book by a sitting Supreme Court justice which explains his/her thinking process? Especially if that book is short enough, and usually worded simply enough to be read easily and relatively quickly. Buy the book, or check it out from the library, and this will indeed show decent respect for the author.
0 of 1 people found the following review helpful:
Breyer v. Scalia, 2007-11-13
"Active Liberty" by Supreme Court Justice Steve Breyer is a well-written but very esoteric book about statutory and constitutional interpretation. Breyer defends a "consequentialist" approach to interpretation that would construe ambiguous laws so as to give real-world effect to their purposes (as revealed in text and structure, court precedents, and legislative and constitutional history). In the case of the Constitution, his approach would favor interpretations that promote popular participation in government, one of the Constitution's basic purposes.
Breyer writes clearly, his book is short, and the discussion draws on modern Supreme Court cases. Best of all, he provides a convincing alternative to fashionable "textualist" approaches to interpretation, which reject legislative history and would have courts stick to the "four corners" of texts, relying on hoary canons of interpretation to clarify ambiguous sections. As Breyer notes, textualism lacks clear Constitutional sanction, is far from transparent, does not guarantee objectivity (its main selling point), and ends up relying on consequentialist reasoning of its own.
Much of the argument of "Active Liberty" revolves around the distinction between so-called Ancient Liberty (the right to participate in government) and so-called Modern Liberty (the right to be free from government coercion). Both values are reflected in the Constitution, and Breyer's effort to strike a balance between them is the most interesting part of his book. While his focus is too narrow for "Active Liberty" to be a major contribution to popular understanding of our legal system, it is a welcome counterpoint -- both jurisprudential and stylistic -- to Scalia's bombastic "A Matter of Interpretation," which dealt with the same issue.
2 of 3 people found the following review helpful:
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.
Price is accurate as of the date/time indicated. Prices and product availability are subject to change. Any price displayed on the Amazon website at the time of purchase will govern the sale of this product.
|
Store Categories
|