Bench Memos

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Berkowitz on Breyer


The always-insightful Peter Berkowitz offers his critique of Justice Breyer’s recent book Active Liberty. Here are a couple excerpts:

“[Breyer] treats the conclusion that the Constitution never ceases to respect the democratic origins of political power as if it vindicated the grander claim that active liberty—or promoting the good of energetic citizen participation in politics—is a preeminent purpose of the Constitution. Breyer overreaches: Without a persuasive basis in the text, history, and structure of the Constitution, his according of privileged constitutional status to active liberty is judicial willfulness masquerading as judicial deference.” (Emphasis added.)

“[T]he argument of Justice Breyer’s book provides dramatic illustration of a fair-minded, thoughtful consequentialist who, alert in theory to the dangers of subjective interpretation and willful imposition, nevertheless, at absolutely critical junctures, falls prey to them.”

Perhaps most telling about Breyer’s purported aspiration to promote citizens’ participation in political life is that, according to Berkowitz, Breyer does not even attempt to explain how his support for Roe v. Wade is compatible with his aspiration: “Astonishingly, neither ‘abortion’ nor ’Roe v. Wade’ appears in his book’s index.”


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