In September, Breyer published “Active Liberty: Interpreting Our Democratic Constitution,” a manifesto for a progressive revival in American jurisprudence. The book, which is a hundred and sixty-one pages long, was inspired in part by Breyer’s disdain for the method of constitutional interpretation championed by his principal ideological rivals on the Court, Antonin Scalia and Clarence Thomas. Their approach, known as originalism or textualism, holds that the words of the Constitution mean only what the framers understood by them; the document’s sense does not evolve over time. Constitutional scholars on both the left and the right have criticized originalism for being overly literal and doctrinaire, but Breyer is the first Justice to attempt to elaborate simultaneously a rebuttal and an alternative.
In “Active Liberty,” Breyer argues that the framers never intended for future generations of jurists to resolve contemporary controversies by guessing how the framers themselves would have resolved them. Instead, their goal was to promote what Breyer, quoting the nineteenth-century French political writer Benjamin Constant, calls “active and constant participation in collective power”—in other words, “active liberty.” The Constitution not only sets limits on official power, Breyer asserts; it insures the right of ordinary citizens to shape the workings of government. “There is this coherent view of the Constitution that has taken hold, called originalism, textualism, a kind of literalism, which is a well worked-out theory,” Breyer told me. “And I think people are tempted to say that there is a coherent theory, on the one hand, and, on the other hand, there are simply judges who go around deciding each case as they think appropriate. And that isn’t so. I think there is a more traditional approach, and it’s coherent, consistent, and specific.”
Indeed, if you are shackled in interpretation by what someone else may have said or thought or done ( in most cases we can't really tell)then are you really at liberty?