Mariah WolfeHist 410Active Liberty Paper5/1/12
The book Active Liberty by Stephen Breyer is a response to Antonin Scalia’s A Matter of Interpretation. Breyer takes a liberal stance on issues that Scalia addresses. Three points that I found interesting are the six elements Breyer uses in interpreting law and how he emphasizes them, the difference between modern liberty and active liberty, and how Breyer applies active liberty in different scenarios.
Early on in the book, Breyer says that there are six elements used when interpreting a law - language, history, tradition, precedent, purpose, and consequence. However, he goes on to say that although all judges uses these different elements, they emphasize them all differently. For example, one judge might put more emphasis on purpose and consequence, while another might concentrate more on tradition and language. This can affect whether or not a judge looks at a law with a loose or strict interpretation. One who uses the first combination might have a strict view of the law because he or she knows what will happen afterwards. Taking into account language and tradition, however, might allow one to have a broader view of the law because they are taking into account how the laws were used before and what exactly the law is saying.
Another point that Breyer touches on, which could also be considered the main argument in the book, is the difference between modern and active liberty. Modern liberty, also known as civil liberty, protects from government and allows the individual to make his or her own decisions without fear of government interaction. Active liberty gives citizens the chance to participate in government. The government is responsible for making sure that the country’s citizens’ needs are being met and that their liberties are not being infringed upon. Both types of liberties have their redeeming qualities, but if
Wolford 2 modern liberty becomes too influential, eventually rights will be taken away or infringed upon. Although Breyer believes that both are necessary, he favors the latter to the former. He goes on to say that because judges lack “relevant expertise”[1] that legislators already have. the citizens should have the right to correct the judges and have a say in the decisions that are being made.
The last point I’d like to bring up is the way in which Breyer applies active liberty to various categories. When discussing speech, Breyer says that it is important to remain objective and instead of looking at every case that questions the First Amendment the same way, one must take it for what it is and examine the history of that case. For example, a case regarding freedom of speech coming from the perspective of a person burning a flag is different from a case in which a corporation is trying to slander another. While some may say that speech is speech no matter what the situation is, Breyer believes that each case needs to be examined differently.
In conclusion, Breyer's book Active Liberty, while a clear response to A Matter of Interpretation, presents views that Scalia's critics may agree with. He demonstrates the importance of maintaining a democratic objective while interpreting law. The three most interesting points were his explanation of interpretive methods, the difference between active and modern liberty, and how he applied active liberty to modern times. While I agree with his views, he presents them in a way that can be dense, at times, but still manages to get his point across.

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[ 1 ]. Stephen Breyer, Active Liberty (New York: Vintage Books, 2005), 5.