ACSBlog: The Blog of the American Constitution Society

By Martin Magnusson: Editor-at-Large

Justice Breyer's book, Active Liberty, has frequently been viewed as a response to Justice Scalia's A Matter of Interpretation, which had a profound impact on constitutional jurisprudence and has been cited in over 1,000 law review articles. In Active Liberty, Justice Breyer contends that constitutional jurisprudence should be shaped by a concern for "active liberty." Active liberty consists of citizen participation in the workings of government and guarantees "the principle of participatory self-government" that gives the people "room to decide and leeway to make mistakes." Rather than using a narrow textualist interpretation, Justice Breyer favors a broader approach that considers the consequences of rulings.

In some ways, Justice Breyer's notion that judges should weigh the practical consequences of their decisions is suggestive of Judge Richard Posner's law and economics approach. Both Judge Posner and Justice Breyer contend that policy consequences should be an important part of judicial decision-making. As fate would have it, Judge Posner reviews Active Liberty in the May edition of the Yale Law Journal. Judge Posner writes:

The idea that conservative Justices do not legislate from the bench is rhetoric rather than reality. It is seductive rhetoric; it may have seduced Justice Breyer, who insists that he doesn't legislate from the bench either, that he is the better originalist because he grasps the democratic character of the Constitution. At this level, the debate between conservatives like Scalia and liberals like Breyer is a semantic fog.

Judge Posner's position appears to be that it is not difficult to find arguments for whatever outcome you favor, regardless of what school of constitutional jurisprudence you subscribe to. Indeed, if two originalists like Randy Barnett and Robert Bork can so vehemently disagree, one wonders whether the "original intent" of the framers is ever discernible.

While Judge Posner contends that judges of all stripes legislate from the bench and suggests that candor in being results-oriented is commendable, one wonders why he claims, in an Online Debate for The New Republic, that he only takes policy implications into consideration when there is no other conventional limitation:

I . . . ask myself what would be a reasonable, sensible result, as a lay person would understand it, and then, having answered that question, to ask whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion.

The May Yale Law Journal also includes reviews of Active Liberty by Cass Sunstein and Paul Gewirtz.