Academic journal article The Review of Litigation

Using All Available Information

Academic journal article The Review of Litigation

Using All Available Information

Article excerpt

USING ALL AVAILABLE INFORMATION Stephen G. Breyer, Active Liberty: Interpreting our Democratic Constitution (Alfred A. Knopf, Pub., 2005)


It is questionable whether a less-fortunate title than Active Liberty: Interpreting Our Democratic Constitution could have been applied to Justice Breyer's rejoinder to Justice Scalia's 1997 volume on his interpretive philosophy.1 Employed as it is in the context of the judicial process, "active liberty" calls to mind the ill-defined concept of "judicial activism." Lambasting the federal judiciary with cries of judicial activism has come into vogue in recent years.2 Justice Breyer likely would respond that in taking his title to task, the reviewer missed the point. "Active liberty," to Justice Breyer, has little to do with proactive judicial decision-making. It is defined as the power and commensurate responsibility of citizens to engage in self-government, and, for Justice Breyer's purposes, it defines the role of judges in interpreting texts-constitutional or statutory-as seeking to preserve and protect that democratic ideal, through a process of understanding texts' essential purposes and interpreting them to accomplish those purposes.3 On the sound-bite front, Justice Scalia, in A Matter of Interpretation: Federal Courts and the Law, offers "textualism,"4 while Justice Breyer risks further branding with "activism." Justice Scalia has one more seeming advantage: his forty-five pages of text promises the elegance of simplicity.5 Justice Breyer took 135 pages for his contrary proposal. Judge Stephen Trott of the Ninth Circuit used to say to his clerks that the analysis of a case should be reducible to a concise bench memorandum of prescribed maximum length. Implicitly, arguments not susceptible to such fore-shortening were suspicious.6

But even Judge Trott permitted more pages if the subject was so inherently important or complex that fewer would not suffice. That is the case with Justice Breyer's responsive salvo in the argument over statutory and constitutional interpretation, which this reviewer thinks appropriately recognizes the difficulty in and importance of the interpretive process. Justice Scalia's A Matter of Interpretation is not merely simple, it is simplistic, and improperly so.7 In its simplicity it ignores the complexity of the process of interpreting language that often lacks a commonly-understood, everyday meaning.

With specific regard to statutory language, Justice Breyer explores the interpretive problem that arises when

statutory language does not clearly answer the question of what the statute means or how it applies. . . . Perhaps [Congress] failed to use its own drafting expertise or failed to have committee hearings, writing legislation on the floor instead. . . . Perhaps no one in Congress thought about how the statute would apply in certain circumstances. Perhaps it is impossible to use language that foresees how a statute should apply in all relevant circumstances.8

And constitutional interpretation is, if anything, a thornier problem. Justice Scalia himself noted: "The problem [of constitutional interpretation] . . . is distinctive, not because special principles of interpretation apply, but because the usual principles are being applied to an unusual text."9

Active Liberty, which "originally took the form of the Tanner Lectures on Human Values presented at Harvard University in 2004"10 (Justice Scalia's A Matter of Interpretation was taken from the same series nine years earlier11), considers the theme of active liberty "as falling within an interpretive tradition and consistent with the Constitution's history."12 Justice Breyer also describes a tension between different judges' competing emphases in the process of statutory or constitutional interpretation. "Some judges emphasize the use of language, history, and tradition. Others emphasize purpose and consequence. These differences in emphasis matterand this book will explain why. …

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