Professor Berkowitz Reviews Justice Breyer's New Book in Forthcoming Policy Review
Professor Peter Berkowitz reviews Justice Stephen Breyer's new book, Active Liberty: Interpreting our Democratic Constitution, in a forthcoming issue of Policy Review.
Democratizing the Constitution. In: Policy Review, 2005. By Peter Berkowitz.
"What the Constitution's democratic objective does mean, according to Breyer, is that in hard cases, where the law's incompleteness or contradictions permit a variety of reasonable resolutions, justices should prefer the interpretation that favors active liberty. In making this bold claim, Breyer insists that one should not overplay the difference between his view of how to interpret the Constitution and that of his colleagues. He places himself within the "broad outlines" of a pragmatic tradition in which he includes Oliver Wendell Holmes, Louis Brandeis, Harlan Fiske Stone, Felix Frankfurter, and Learned Hand. This tradition, he maintains, encourages judges to fill the Constitution's open-ended provisions in light of its purposes or fundamental aspirations."