Active Liberty Interpreting a Democratic Constitution

Author: Stephen Breyer
Publisher: Oxford University Press
ISBN: 9780199227075
Published In: March 2008
Format: Hardback , 216 pages
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Presents the authoritative statement of Justice Breyer's liberal theory of democratic constitutionalism, a leading voice of the U.S. Supreme Court
Provides a coherent guide for constitutional interpretation for judges and practitioners involved in constitutional litigation
Offers an original contribution to the liberal theory of democratic government, including the role and scope of human rights protection

New to this edition

A new chapter discusses central questions of European constitutional law, including the foundations of EU legitimacy, and religious freedom as a human right

What role should courts play in a modern democracy? How should fundamental provisions of a democratic constitution be interpreted? These questions have divided constitutional theorists and those responsible for interpreting and applying constitutional law including, notoriously, the current U.S. Supreme Court. Justice Breyer is the most prominent liberal voice in the Supreme Court, this book distils his experience of interpreting the U.S. constitution and outlines a general liberal theory of the role of constitutional courts.

Breyer argues that the primary role of a democratic constitution is to preserve and encourage 'Active Liberty': citizen participation in shaping government and its laws. The book argues that promoting active liberty requires judicial modesty and deference to legislative bodies; it also requires the recognition of the changing needs and demands of the populace. Breyer makes a powerful case against treating constitutions as a static guide for a world that has passed into history.

Throughout the book, active liberty is employed as a foundational concept to illuminate the interpretation of key constitutional questions, and recent Supreme Court controversies, such as the scope of free speech and racial equality protection.

For this revised, international edition of the book, Justice Breyer extends his discussion of democratic theory to examine topical questions in European constitutional law, including the legitimacy of the European Union, religious freedom under the European Convention on Human Rights.

Readership: Academics and students researching Constitutional Law and Theory, or the practice of the US Supreme Court; political scientists interested in the democratic theory and constitutionalism; Judges and practitioners involved in interpreting constitutions and statutes

1: Active Liberty
2: Freedom of Speech
3: Federalism
4: The Right of Privacy
5: Affirmative Action
6: Statutory Interpretation
7: Administrative Law
8: Purposive Interpretation
9: A Broader Application

Stephen Breyer, Justice of the Supreme Court of the United States

Review(s) from previous edition

"Fluid...Should show up on every litigator's bookshelf, providing how-to advice like a do-it-yourself guidebook to judicial reasoning. - New York Law Journal

"Breyer's prose is admirably simple and clear, and his discussion shows a keen legal intellect that espouses broad values rather than narrow theories, and a deep, humane concern with fostering democracy and the well-being of the citizenry. This will be essential reading at a possibly watershed moment for the Supreme Court." - Publishers Weekly

"Impeccable advice for the powerful in all walks of life." - The Boston Globe

"A breath of fresh air...His calm tone, straightforward language, wise understanding of the judicial craft, and respectful engagement with rival views could not be more timely." - Policy Review

"Provocative and well-argued...What we need more of, Active Liberty insists, is not activist judges but activist citizens." - The New York Times

"Active Liberty will likely influence not only public debate but also how lawyers craft their cases." - The Wall Street Journal

"A brisk, lucid and energetic book, written with conviction and offering a central argument that is at once provocative and appealing...Deserves a place of honour in national debates, now and in the future, about the role of the Supreme Court in American life." - The New Republic