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Justice Breyer's Constitutional Jurisprudence: Active Liberty and Pragmatism

ABSTRACT This analysis of Associate Justice Stephen Breyer's jurisprudence proceeds from his first book devoted to this subject, Active Liberty, a term he derives from Benjamin Constant and that Breyer defines as participatory democracy. Active Liberty and two subsequent books, as well as numerous off-bench writings, explain his jurisprudence of pragmatism, an approach he contrasts with originalism. This article addresses three general questions: Is Breyer's jurisprudence, founded on active liberty and pragmatism, fundamentally consistent with the design of the Constitution? Does his jurisprudence support his opinions in the constitutional decisions examined, a number of which are also treated in his books and articles? In a system that is designed to empower and to limit government, do his jurisprudence and judicial decisions constrain judges? This last question is especially important because of Breyer's thesis “that courts should take greater account of the Constitution's democratic nature when they interpret constitutional and statutory texts.” Breyer believes that his theory of active liberty ameliorates the democratic anomaly between a system “based on representation and accountability” that at the same time entrusts “final or near-final” authority to unelected judges who are insulated from public opinion.