Editing Stephen Breyer (section)

===''Active Liberty''===
[[File:Stephen Breyer (cropped).jpg|thumb|Breyer in 2011]]

Breyer expounded his judicial philosophy in 2005 in ''[[Active Liberty|Active Liberty: Interpreting Our Democratic Constitution]]''. In it, Breyer urges judges to interpret legal provisions (of the Constitution or of statutes) in light of the purpose of the text and how well the consequences of specific rulings fit those purposes. The book is considered a response to the 1997 book ''A Matter of Interpretation'', in which [[Antonin Scalia]] emphasized adherence to the original meaning of the text alone.<ref name="Wittes2005" /><ref>{{Cite news |last=Feeney |first=Mark |date=October 3, 2005 |title=Author in the Court: Justice Stephen Breyer's New Book Reflects His Practical Approach to the Law |url=http://archive.boston.com/ae/books/articles/2005/10/03/author_in_the_court/ |url-status=live |archive-url=https://web.archive.org/web/20171226131035/http://archive.boston.com/ae/books/articles/2005/10/03/author_in_the_court/ |archive-date=December 26, 2017 |access-date=December 26, 2017 |work=[[The Boston Globe]]}}</ref>

In ''Active Liberty'', Breyer argues that the [[Founding Fathers of the United States|Framers of the Constitution]] sought to establish a democratic government involving the maximum liberty for its citizens. Breyer refers to [[Isaiah Berlin]]'s ''Two Concepts of Liberty''. The first Berlinian concept, being what most people understand by liberty, is "freedom from government coercion". Berlin termed this "[[negative liberty]]" and warned against its diminution; Breyer calls this "modern liberty". The second Berlinian concept—"[[positive liberty]]"—is the "freedom to participate in the government". In Breyer's terminology, this is the "active liberty" the judge should champion. Having established what "active liberty" is, and positing the primary importance (to the Framers) of this concept over the competing idea of "negative liberty", Breyer makes a predominantly [[utilitarian]] case for rulings that give effect to the [[Original intent|democratic intentions]] of the [[United States Constitution|Constitution]].{{citation needed|date=August 2022}}

The book's historical premises and practical prescriptions have been challenged. For example, according to [[Peter Berkowitz]],<ref>{{Cite web |last=Berkowitz |first=Peter |title=Democratizing the Constitution |url=http://www.peterberkowitz.com/democratizingtheconstitution.pdf |url-status=live |archive-url=https://web.archive.org/web/20071128141817/http://www.peterberkowitz.com/democratizingtheconstitution.pdf |archive-date=November 28, 2007 |access-date=October 26, 2007}}</ref> the reason that "[t]he primarily democratic nature of the Constitution's governmental structure has not always seemed obvious", as Breyer puts it, is "because it's not true, at least in Breyer's sense, that the Constitution elevates active liberty above modern [negative] liberty". Breyer's position "demonstrates not fidelity to the Constitution", Berkowitz argues, "but rather a determination to rewrite the Constitution's priorities". Berkowitz suggests that Breyer is also inconsistent in failing to apply this standard to the issue of abortion, instead preferring decisions "that protect women's modern liberty, which remove controversial issues from democratic discourse". Failing to answer the [[Textualism|textualist]] charge that the [[Living Constitution|Living Documentarian]] judge is a law unto himself, Berkowitz argues that ''Active Liberty'' "suggests that when necessary, instead of choosing the consequence that serves what he regards as the Constitution's leading purpose, Breyer will determine the Constitution's leading purpose on the basis of the consequence that he prefers to vindicate".{{citation needed|date=August 2022}}

Against the last charge, Cass Sunstein has defended Breyer, noting that of the nine justices on the Rehnquist Court, Breyer had the highest percentage of votes to uphold acts of Congress and also to defer to the decision of the [[Executive branch of the United States|executive branch]].<ref>Sunstein, pg. 7, citing Lori Ringhand, "Judicial Activism and the Rehnquist Court", available on ssrn.com and Cass R. Sunstein and Thomas Miles, "[https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?httpsredir=1&article=2663&context=journal_articles Do Judges Make Regulatory Policy? An Empirical investigation of Chevron] {{Webarchive|url=https://web.archive.org/web/20171226131026/https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?httpsredir=1&article=2663&context=journal_articles |date=December 26, 2017 }}", ''University of Chicago Law Review'' 823 (2006).</ref> However, according to [[Jeffrey Toobin]] in ''[[The New Yorker]]'', "Breyer concedes that a judicial approach based on 'active liberty' will not yield solutions to every constitutional debate", and that, in Breyer's words, "respecting the democratic process does not mean you abdicate your role of enforcing the limits in the Constitution, whether in the Bill of Rights or in separation of powers."<ref name="toobin">{{Cite magazine |last=Toobin |first=Jeffrey |date=October 31, 2005 |title=Breyer's Big Idea |url=https://www.newyorker.com/archive/2005/10/31/051031fa_fact?currentPage=1 |url-status=live |archive-url=https://web.archive.org/web/20140317153814/http://www.newyorker.com/archive/2005/10/31/051031fa_fact?currentPage=1 |archive-date=March 17, 2014 |access-date=February 18, 2020 |magazine=[[The New Yorker]]}}</ref>

To this point, and from a discussion at the [[New York Historical Society]] in March 2006, Breyer has noted that "democratic means" did not bring about an end to [[slavery]], or the concept of "one man, one vote", and it is the concept of universal suffrage that allowed corrupt and discriminatory (but democratically inspired) state laws to be overturned in favor of [[civil rights]].<ref name="NYHS">{{Cite web |last=Pakaluk |first=Maximilian |date=March 13, 2006 |title=Chambered in a 'Democratic Space'. Justice Breyer explains his Constitution |url=http://www.nationalreview.com/comment/pakaluk_200603130802.asp |url-status=dead |archive-url=https://web.archive.org/web/20060318104617/http://www.nationalreview.com/comment/pakaluk_200603130802.asp |archive-date=March 18, 2006 |access-date=October 31, 2007 |website=National Review}}</ref>