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A historic occassion: at a time when the American judicial system is subject of much controversy, a United States Supreme Court Justice offers a new theory of constitutional interpretation.
Justice Stephen Breyer defines “active liberty” as a sharing of the nation’s sovereign authority among its people. He sees the Constitution as a guide for the application of basic American principles to a living and changing society rather than as an arsenal of rigid legal means for binding and restricting it. He gives us examples of this view in the areas of free speech, federalism, privacy, affirmative action, and interpretation of the law. He makes clear why judges should place more emphasis on the consequences of legal decisions and less on literal readings of the law. In sum, he advocates the idea of a living Constitution—challenging the strict constructionism of judges who insist on limiting themselves to purely legal considerations.
Justice Breyer is widely regarded as one of the Court’s most brilliant members. Active Liberty, based on the Tanner lectures he delivered last year at Harvard University, is a declaration of the first importance.
“Now, with Samuel Alito succeeding the retiring Justice Sandra Day O’Connor, it remains to be seen who will stand at the center of the court in the future and command its vote when it is narrowly divided. With Active Liberty,Stephen Breyer has offered a theory of democratic pragmatism that is very likely to play a powerful role in deciding such controversies. Everyone interested in the trajectory of the new Roberts court should surely read it.” — Kathleen Sullivan, New York Times Book Review
“At last, a direct and substantial challenge, within the Court, to the constitutional thought of Justice Scalia.... With this small but important book, Justice Breyer merges as a leading theorist of constitutional interpretation on the highest bench in the land.” —Cass R. Sunstein, The New Republic
“An important contribution…. Active Liberty serves to clarify the stakes in contemporary disputes over the courts.” —Benjamin Wittes, Washington Post
“Justice Breyer gives us a delightful insight into his philosophy of deciding cases…. With Justice Breyer increasingly seen as a swing vote, lawyers are certain to study this book for clues to his thinking.” —Jess Bravin, Wall Street Journal
“A provocative and well-argued case for reading the Constitution in light of the founders’ greatest concern: giving the people the power to govern themselves.” —Adam Cohen, New York Times, Op Ed