Active Liberty by Stephen Breyer

When it comes to nonfiction books, I seem to delineate between the ideas contained in the text and the presentation of that text in ways that I fail to with fiction. For instance, I feel the prose in fiction is much more intrinsically bound to meaning than it is in a nonfiction work, with notable exceptions of course. Is this justified? And can one separate the two when reviewing a book that is heavily ideological but not delivered in an engaging manner? Or is rendering a verdict on a work make the conflation necessary? As I continue to study the book review as a form, these are questions to keep in mind.

As to the subject at hand, I found the ideas in Stephen Breyer’s Active Liberty to be enlightening and thought provoking, but didn’t feel that the presentation lived up to the material. Based on a series of lectures the Associate Justice of the Supreme Court delivered at Harvard in 2004, the ‘book’ is only 135 small pages with generous margins, making it seem more a pamphlet. Essentially, the book serves as a refutation of the ideas of fellow Justice Antonin Scalia, firmly opposed to originalism.

Active Liberty gets its title from the political philosopher Benjamin Constant, who makes a distinction between the ‘liberty of the moderns’ and the ‘liberty of the ancients.’ Modern liberty would be the kind that we think of most often, that associated with the Bill of Rights which gives us the freedom from the government telling us what to believe or where to live. But ancient liberty, Breyer’s active liberty, is the citizens sharing decision making with the government.

Instead of laying out a firm ideological stance, Breyer is more pragmatic in his approach. As I am nearing thirty and now own a home and pay considerable taxes, I am much more pragmatic than I was as impoverished far left college student. But that doesn’t mean I have abandoned my beliefs or backed down, only that for many things (like school performance) I have no real preference other than to know that my tax dollars are being spent wisely and effectively. Breyer’s book is more of an interpretive guide to show judges a way to give more weight to the practical consequences of his or her rulings, and to the structural elements of American democracy that favor citizen participation. He feels this would move the Court back towards the years of Earl Warren, and away from the Rehnquist model. (The book was published in 2005, on the cusp of the Roberts court.)

All this is well and good, but the examples Breyer uses are a bit staid. The best case study is of Grutter v. Bollinger, where the Court ruled on the ability for the University of Michigan’s law school to give preferential treatment to minority applicants. Siding with the university, which prevailed in the case, he gives practical consequences for his decision, claiming that the workforce needs diversity. He uses examples from the military, whose officer corps gives a leg up to minorities, which seems incredibly smart and important when one considers the large number of white officers and the overwhelming numbers of minority enlisted.

What Scalia and the originalists claim is that without sticking precisely to the text of the constitution, a judge is just making up the law as they go. What Breyer attempts here is attempt to give a different method of interpretation that uses a consistent application of legal principles, a more practical argument than impassioned one. He also cringes when courts seem to decide cases based on their own feelings of right and wrong, preferring to judicial restraint.

While I agree greatly with most of Breyer’s assertions, he lacks the passion of Scalia. Despite what one thinks of the man or his opinions, it would be hard to dispute that he is an interesting guy to listen to. I suppose that after coming to really admire Breyer when reading Jeffrey Toobin’s The Nine, I wanted this to be an effective punch thrown against originalism. Instead, Active Liberty seems to only be a glancing blow.