Breyer Touts ‘Active Liberty’

U.S. Supreme Court Justice Stephen G. Breyer said yesterday American citizens must participate in government if they expect to realize the Constitution’s democratic intentions.

Opening an important series of lectures on democracy and the Constitution, Breyer stressed the importance of what he called “active liberty.” In electing representatives, participating in recalls and referenda and other ways—all part of this concept of “active liberty”—he said citizens help trace “the line of authority of the making of government decisions back to the people.”

He emphasized that the Constitution was created not only to guarantee the rights of people against the government but to involve people in the creation of policy. Establishing that involvement makes the Constitution a document of democracy.

“The right to legislate is in every member of the community,” Breyer said.

Breyer, considered one of the court’s liberal justices, spoke as the future composition of the nation’s top tribunal has become a major topic of political discussion. Under the lights of a packed Lowell Lecture Hall, he explained how his concept of active liberty relates to the way he decides cases about freedom of speech, federalism and privacy.

Focusing on how the Constitution involves the people, he says, leads to constitutional interpretations that are best for ordinary people.

Breyer said that when citizens involve themselves in the political process—especially by writing editorials and articles—they show members of the Court what the people want. And that, Breyer said, helps him make decisions that best benefit the ordinary citizen.

“I better be as informed as I can be before I make a decision that will affect them,” he said.

Scholars who listened to Breyer explain his theory said his reasoning closely resembled theories that go under other names.

“Another term for active liberty is civic liberty,” said Associate Professor of Government J. Russell Muirhead, who attended the speech. “In civic liberty, we are free when we participate in a self-governing republic.”

Breyer admitted that the numerous components of American government—such as the separation of powers, the courts and the Electoral College—form a very complicated system. But he defended this complexity, saying without it the system would not function.

James Madison “wanted a democracy that would not just have power flowing from the people, but a democracy that works,” he said.

Breyer will continue the series in Lowell Lecture Hall this afternoon at 4:15 p.m. and host a summary session and seminar tomorrow morning at 9 a.m.

Breyer earned undergraduate degrees from Stanford University and Magdalen College, Oxford. He graduated from Harvard Law School, then taught there and at the Kennedy School of Government. From 1980 to 1994, he served on the U.S. Court of Appeals for the 1st Circuit. In 1994, he was appointed associate justice of the U.S. Supreme Court by then-President Bill Clinton.

“Our Democratic Constitution” is part of this year’s Tanner Lectures on Human Values. Established by Obert C. Tanner, and maintained by the Tanner Foundation at the University of Utah, the lecture series rotates among different colleges in the U.S. and Europe.