Active Liberty: Interpreting Our Democratic Constitution.

Active Liberty Stephen Breyer Alfred A. Knopf www.randomhouse.com 176 pp., $21

Today, in conservative circles, it has become almost de rigeur to label as "activist" any constitutional interpretation that considers purposes or consequences rather than text or original meaning exclusively. Take, for example, a recent speech given by Justice Antonin Scalia at an event sponsored by the Federalist Society. Scalia decried the idea that the Constitution "has to change with society, like a living organism, or it will become brittle and break." He said, "[Y]ou would have to be an idiot to believe that. The Constitution is not a living organism; it is a legal document. It says something and doesn't say other things."

That the phrases "strict constructionist" and 'Judicial activist" are usually placed at opposite ends of a jurisprudential continuum owes much to the success that Scalia has had in arguing that fidelity to the Constitution requires strict adherence to its literal terms and original understanding.

Perhaps that's what makes Justice Stephen Breyer's new book, Active Liberty: Interpreting Our Democratic Constitution, so welcome. Finally, another member of the Court has taken the time to outline his approach to deciding cases. In Active Liberty, Breyer explains for a popular audience why his approach to statutory and constitutional interpretation is preferable to textualism (as it is called in respect to interpreting statutes) or originalism (in respect to interpreting the Constitution).

He begins with the premise that the Constitution embodies two principles of liberty: ancient (or active) liberty and modern liberty. Drawing from the writings of Benjamin Constant, a French political philosopher, Breyer defines ancient liberty as "freedom to participate in government itself" and modern liberty as "freedom from government coercion."

"While conscious of the importance of modern liberty," Breyer writes, "I seek to call increased attention to the combination's other half." His thesis is that courts should take greater account of the Constitution's democratic nature when they interpret constitutional and statutory texts."

He then applies that thesis to recent controversies in the areas of free speech, federalism, privacy, equal protection, statutory interpretation, and judicial review of administrative action. With each example, Breyer explains how "increased recognition of the Constitution's democratic objective can help judges deal more effectively with [these] interpretive issues."

Notably absent from the book is any discussion of how the theme of active liberty would apply in the context of abortion. Perhaps Breyer thought it wise to avoid this controversial subject, but it seems odd to champion the importance of respecting democratic values in constitutional cases without responding to critics of Roe v. Wade, who, fairly or not, consider the decision antidemocratic.

The most illuminating chapter for me was the last, "A Serious Objection," in which Breyer argues that textualism and originalism are interpretive approaches that are in fact more subjective than his approach, which takes into account purpose and consequence in an effort to preserve democratic values. He writes,

   Literalism has a tendency to undermine
   the Constitution's efforts to create a framework
   for democratic government--a government
   that, while protecting basic individual
   liberties, permits citizens to govern
   themselves, and to govern themselves effectively.
   Insofar as a more literal interpretive
   approach undermines this basic objective,
   it is inconsistent with the most
   fundamental original intention of the
   framers themselves.

What effect Active Liberty may have on the Roberts Court or popular conceptions of what it means to be an activist judge remains to be seen. But I advise anyone interested in Supreme Court advocacy or the progression of the Court to read it. This short and highly accessible book provides insight into the mind of a justice who, following the retirement of Sandra Day O'Connor, may prove to be the next swing vote.

ANDRE MURA is junior associate litigation counsel with the Center for Constitutional Litigation in Washington, D. C.