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Reading Justice Stephen Breyer’s Active Liberty: Interpreting Our Democratic Constitution is almost like listening to “Dueling Banjos” from the movie “Deliverance.” First, Justice Antonin Scalia set out his judicial philosophy in A Matter of Interpretation, first released in 1997. Now we have Breyer’s response. Both books originated in a series of prestigious lectures, and Active Liberty retains much of the conversational tone of a good lecture. It is an easy read. And an informative one. Justice Breyer’s judicial philosophy, as he repeatedly states, places “purposes and consequences” at the heart of constitutional interpretation. By paying attention to purposes and consequences, judges are more likely to ensure that we have a good and workable government, which is what constitutions should do. The Constitution’s central purpose, according to Breyer, is the promotion of what he calls active liberty, “the freedom of the individual citizen to participate in the government and thereby to share with others the right to make or to control the nation’s public acts.” Notably, Breyer defends his identification of active liberty as the Constitution’s purpose in originalist terms: If we consider their goals on an appropriate level of generality, we see that the Constitution’s Framers were aiming to promote active liberty. Breyer contrasts his approach with Scalia’s originalist one. Scalia challenges pragmatists like Breyer to show how their approach constrains the otherwise natural impulse for interpreters to find (or, as Scalia would put it, insert) in the Constitution exactly those provisions that implement their policy preferences. Breyer offers several responses. First, he says, purposes and consequences matter, but they are not the only things that go into constitutional interpretation. Constitutional interpretation involves the deployment of an eclectic combination of techniques, including reference to precedent and indeed original understanding. The professional norms to which judges adhere place some bounds on what eclectic interpretation can yield. Second, Breyer argues that originalist approaches are at least as subjective as the pragmatism he recommends. Constitutional language, even or particularly when read in light of the historical circumstances from which it emerged, is inevitably ambiguous enough to make honest disagreement possible even within a purely originalist approach. Choosing among the originalist interpretations that language, history, and structure make available is no less subjective than taking the pragmatic course. And, Breyer argues, the originalist approach is less transparent than the pragmatic one, because an originalist opinion cannot display the grounds for choice in the way that the pragmatic opinion’s focus on purposes and consequences does. Finally, Breyer argues that attention to purposes and consequences is itself a source of constraint. Here, as throughout the book, Breyer relies on examples from his time on the Supreme Court. He describes his dissenting opinion in the Cleveland school voucher case, arguing that making public funds available � by means of vouchers � is likely to promote “civil strife,” which the establishment clause sought to avoid. Breyer’s example does illuminate his approach, but also some of its difficulties. He describes the possible effects of school vouchers � administering them would require public authorities to ask whether the schools receiving them satisfy some educationally relevant criteria, for example � but not others, such as their effects on making a wider range of choices available to parents unable to afford the full cost of education in private schools. Saying “pay attention to purposes and consequences” doesn’t tell you which consequences to pay attention to, or how to weigh one consequence against another. Breyer discusses originalism near the end of the book, under the heading “A Serious Objection” � that is, an objection to his own approach in the first 100 pages of Active Liberty. His strategy is to make his approach attractive by describing how it works in practice, and then to show that nothing in the originalist objection undermines its attractiveness. The cases Breyer describes hint at a general approach: Courts should generally defer to legislative decisions about what promotes active liberty (as in campaign finance legislation), and when they invalidate statutes they should do so on as narrow grounds as possible, focusing on whether the legislation is a proportionate response to the problem it purports to address. It’s not clear, though, how this approach necessarily flows from attention to purposes and consequences � nor how it supports Breyer’s position in the voucher case, which focuses on some of the possible consequences flowing from voucher systems, not on all the consequences, or the actual ones as far as they have actually occurred. One might say the same thing about Breyer’s opinion in the “partial-birth” abortion case. Breyer does not mention the abortion issue anywhere in Active Liberty. His silence is interesting, because on the face of it, there’s no connection between enforcing active liberty, as he defines it, and protecting abortion rights in a case like the Nebraska partial-birth abortion decision (which Breyer wrote). In the end, Active Liberty is less a defense of a pragmatic approach to constitutional interpretation than a recommendation that judges should approach constitutional interpretation with what I would call a judicious cast of mind, not rigidly bound by theoretical presuppositions. As we consider the coming reconstitution of the Supreme Court, Breyer’s judiciousness, displayed in Active Liberty, may be more important than the pragmatism he recommends.
Mark Tushnet is the Carmark Waterhouse Professor of Constitutional Law at Georgetown University Law Center and the author of A Court Divided: The Rehnquist Court and the Future of Constitutional Law.

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