Stephen Breyer believes that the U.S. Constitution and the statutes passed by Congress must allow interpretation that maximizes the participation of the public. "Active Liberty" is his term for a method of judicial interpretation that considers the intent of the framers of the Constitution, the wishes of the legislators who wrote the laws, the administrators who enforce the laws, and the public in whom all authority rests. While it calls for judicial restraint, it is not a method of literal interpretation. Breyer shows in the text of his new book Active Liberty: Interpreting Our Democratic Constitution that word by word analysis sometimes leads to mistaking general Congressional intent and often serves the public badly. Breyer wants as a Supreme Court Justice the ability to look beyond the statutory text to form decisions; he will often use texts of hearings, commentaries, and testimonies that suggest the consequences of law.
In Active Liberty, Breyer discusses the application of his concept to free speech, federalism, privacy, affirmative action, statutory interpretation, and administrative law. He discusses cases brought before the Supreme Court, telling why he agreed or disagreed with the court's decisions. He points out that most Supreme Court decision are unanimous; most attention is given to the cases that divide the court. The colleague he quotes most in the book is retiring justice Sandra Day O'Connor.
I thought about libraries in his discussion of administrative law. Breyer points out that democratic control of government has to be tempered by expert knowledge in our technically modern life. The wishes of the public and the public good are not the same in areas of civil liberties, the environment, and other areas of controversy. The experts who work for governmental agencies and have to interpret their jobs daily should be listened to closely in judicial inquiries, according to Breyer. Librarians are such experts. Justices should listen to us in cases involving libraries and information.
The public library would never work as a totally democratic institution. We could never get our community of users and nonusers to agree to the hours of service, the services to provide, and the materials to stock. The public library has the mission to serve the informational, educational, and recreational needs of all its residents, and only professional librarians with the authority to sometimes do the unpopular can complete the mission. The role of the library, however, is to support active democracy, and librarians should listen to the library users; librarians should incorporate as many of their ideas and buy as many of the books they recommend as possible. We must make our users feel that the libraries are theirs.
Active Liberty is a more readable book than you might imagine would be written by a Supreme Court justice. Taken from a series of lectures, it is also fairly short. It includes a really good explanation of why we have many elected officals with differing lengths of service. More libraries should buy it.
Breyer, Stephen. Active Liberty: Interpreting Our Democratic Constitution. New York: Alfred A. Knopf, 2005. ISBN 0307263134