- Audio CD
- Verlag: Recorded Books Unabridged; Auflage: Unabridged (11. Mai 2006)
- Sprache: Englisch
- ISBN-10: 1428100032
- ISBN-13: 978-1428100039
- Größe und/oder Gewicht: 13,4 x 1,5 x 14,4 cm
- Durchschnittliche Kundenbewertung: Schreiben Sie die erste Bewertung
- Komplettes Inhaltsverzeichnis ansehen
Active Liberty: Interpreting Our Democratic Constitution (Englisch) Audio-CD – Audiobook, 11. Mai 2006
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“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 honor in national debates, now and in the future, about the role of the Supreme Court in American life.” –The New Republic
“An important contribution. Active Liberty serves to clarify the stakes in contemporary disputes over the courts, rightly emphasizing areas of common ground alongside those of controversy.”–The Washington Post Book World
“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
From the Trade Paperback edition. -- Dieser Text bezieht sich auf eine vergriffene oder nicht verfügbare Ausgabe dieses Titels.
Über den Autor und weitere Mitwirkende
Stephen Breyer is an associate justice of the United States Supreme Court. He is a resident of Cambridge, Massachusetts, and Washington, D.C. -- Dieser Text bezieht sich auf eine vergriffene oder nicht verfügbare Ausgabe dieses Titels.Alle Produktbeschreibungen
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Justice Breyer premises his approach on the writings of a French political philosopher, Benjamin Constant who, writing in the early 1800s, compared what he called the "liberty of the ancients" with "modern liberty." Ancient liberty consists of the people sharing in the sovereign authority of the government, an "active liberty." Modern liberty consists of the individual's freedom to pursue his own interests free of improper government interference. Breyer focuses on the liberty of the ancients, which he believes requires judges to focus on whether the ultimate consequence of a particular interpretation furthers "the people's right to `an active and constant participation in collective power.'"
The active liberty theme is applied to several present-day issues, including campaign finance reform, congressional redistricting, privacy in an age of technological information gathering, and affirmative action. It is also applied to statutory interpretation and to the interpretation of administrative law. The result is a cogent explanation of Justice Breyer's thinking with respect to these examples but it gives no compelling reason why anyone else should use this approach. In fact, the examples demonstrate the subjectivity inherent in a member of the judiciary making what are essentially legislative determinations. Breyer acknowledges that any method of interpretation involves subjectivity but states his belief that a consequence-oriented approach is less so than others. He attributes to the ancient Greek statesman Pericles, the following: "We do not say that the man who fails to participate in politics is a man who minds his own business. We say that he is a man who has no business here." It is the best line in the book.
The brevity of Justice Breyer's book helps to make it an easy read. The complexity of the subject matter is buried in the endnotes, which I suspect, only sophisticated court-watchers will bother to examine
Judge Breyer regards his approach as consistent with "ancient" liberty, as opposed to "modern" liberty. Ancient liberty emphasized the collective efforts of citizens in self-governance. However, he recognizes the possibilities of coercion when participation is expected, if not required; hence modern liberty - a liberty that protects one's right to be left alone. He contends that the Framers constructed a Constitutional order that expected citizen participation and created the liberty to do so.
The book is strongest in the general ideas concerning judicial approach. The interpretative approach is a broad-based approach, in terms of what factors are considered. The literalist approach seems self-limiting and actually more prone to subjectivity in that judges often create precise meaning from vaguely worded language. Less successful are the examples given that supposedly demonstrate the success of the interpretive approach in such areas as free speech, federalism, privacy, affirmative action, statutory interpretation, and judicial review of administrative action. For one, the descriptions border on legalese, that is, they are difficult to follow, and secondly the positions defended at times seem peculiarly anti-democratic. It is bizarre that a CA statute that permitted a consumer to challenge Nike's claim of observing worker rights is struck down, with the author's agreement, due to Nike's right to persuade the public - strange indeed.
One could disagree with the judge concerning the democratic intent of the Framers. Democracy was pretty much a forbidden word among the framers. At best, they created a highly constrained democracy that excluded the participation, by Constitutional stipulation, of a large majority of Americans. As far as desiring citizen participation - elites throughout American history have generally feared collective actions originating from below, such as labor unions, and usually enlist the state in suppressing such movements. The Populists in their early years were defeated through intimidation and blatant voter fraud. The author, most curiously, does not mention the decision in the late nineteenth century that recognized corporations as legal persons, a truly monumental decision with ramifications throughout our society, especially in the political process. Nike et al are not persons, yet they trump people.
His arguments against so-called strict constructionism are compelling. The original intent of the Framers of over two centuries ago, even if it could be determined and it usually cannot, is only marginally relevant in a world that has drastically changed since 1787. Without providing an analysis of Supreme Ct decisions through the years, it is still safe to say that the Supreme Ct has been a conservative, even backward-looking, force in our society, often favoring elites. It is hardly certain that judges of Breyer's disposition will have much on an impact on that history. But it is interesting to see the little in-fight on the Supreme Ct.
This book is really slim, and at $21 is overpriced (so buy it on Amazon with the offered discount!). It is based on a set of lectures Breyer gave, so don't expect a fleshed-out scholarly monograph. I would love to read Breyer's arguments and examples in a more well-developed form. Nevertheless, I think the book clearly lays out Breyer's ideas and conveys the broad structure of his argument. Most importantly, books like this give readers first-hand access to a Justice's thinking; this is can be more attractive than reading someone else's summary of a Justice's philosophy.