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Wednesday, August 24, 2005


Justice Breyer's Active Liberty

Jim Lindgren notes a story in the Wall Street Journal about Justice Steven Breyer's book on interpreting the Constitution:
"Here is the WSJ on Breyer's book:
By contrast [with Justice Scalia's book on interpretation], Justice Breyer's 'Active Liberty' contends that judges can undercut the democratic system the Constitution's Framers sought to build if they adhere too literally to legal text and disregard the 'real world' consequences of the decisions they render.

So whereas Justice Scalia has voted to strike down campaign finance laws, arguing that they restrict free speech, Justice Breyer espouses a much different theory. He has voted to uphold such laws, arguing that they actually support constitutional values — such as the marketplace of free ideas — by limiting the ability of monied factions to overwhelm other points of view. . . .

The 161-page book, set for publication Sept. 13, aims to popularize ideas Justice Breyer has already advanced in academic lectures and articles. A judge's task, he says, is construing the Constitution in a way "that helps a community of individuals democratically find practical solutions to important contemporary social problems." He calls that freedom to participate in government "active liberty," a complement to passive liberties that protect the individual from interference by the government. . . ."
This doesn't really seem the right approach to me. If people in the community see the need to find practical solutions (presumably solutions that are now unconstitutional) to important contemporary problems, then why can't these people start their quest by trying to amend the Constitution according to Article V? It seems to me better to have political discussion in the context of the super majorities required by Article V lead to constitutional change, than to have 9 Supreme Court Justices discuss and decide on constitutional change behind closed doors, especially when constitutional change by Justices can be accomplished with only 5 people being in agreement.

What do you think?

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