Links:

    -WIKIPEDIA: Stephen Breyer
    -BIO: Stephen Breyer (John R. Vile, June 2017, The First Amendment Encyclopedia)
    -BIO: Stephen Breyer Biography (1938–) (Biography.com)
    -BOOK SITE: Active Liberty (Penguin Random House)
    -WIKIPEDIA: Active Liberty
    -PDF: Active Liberty (Tanner Lectures)
    -LECTURE: Our Democratic Constitution (Stephen Breyer, November 17, 18 and 19, 2004, Harvard University Tanner Lectures On Human Values 2004-2005)

The United States is a nation built upon principles of liberty - principles that include a democratic form of government. The French political philosopher Benjamin Constant understood the connection. He distinguished between liberty as understood by the ancient world, the Greeks and the Romans, and liberty as understood by the Nineteenth Century moderns.

Writing thirty years after the French Revolution, not long after the adoption of the American Constitution, Constant pointed out that "the liberty of the ancients" is an active liberty, consisting of a sharing of a Nation's sovereign authority among that Nation's citizens. From the citizen's perspective, it consists of "an active and constant participation in collective power." It means "submitting to all the citizens without exception the care and assessment of their most sacred interests." The sharing of sovereign authority, Constant said, would "ennoble[]" the people's "thoughts and establish[] among them a kind of intellectual equality which forms the glory and power of a people."

Constant distinguished the active, participatory "liberty of the ancients" from a more "modern" negative liberty that consists of "individual independence" from State control. He was no stranger to negative liberty. Having seen the Terror in action, Constant understood the need to protect the individual from the excesses of those who act in the name of a democratic majority. In recognizing the need to protect individuals from the unchecked power of even a democratically constituted State, Constant made clear that both ancient active and modern negative freedoms "are important." He said that we must embrace both, "learn[ing] to combine the two together."

Those who created our Constitution understood the liberty of which Constant spoke. They wrote a document that stresses the importance of modern "negative" liberty, but at its core is a blueprint for "ancient" active liberty, which they might have called "public liberty" and which we might call "democracy." Jefferson, for example, spoke of the rights of the citizen as "a participator in the government of affairs," - while Adams, his rival, added that all citizens have a "positive passion for public good."

My Tanner lectures are about this ancient liberty as embodied in our more modern Constitution. My thesis is that courts should take greater account of the Constitution's democratic nature when they make both constitutional and statutory decisions.

    -VIDEO: U.S. Supreme Court Associate Justice Stephen Breyer describes the interpretive principles explored in his book, "Active Liberty: Interpreting our Democratic Constitution." (Charlie Rose Show, 10/26/06)
    -AUDIO INTERVIEW: 'Active Liberty' from Justice Stephen Breyer (Fresh Air, October 20, 2005, NPR)
    -PROFILE: Supreme Court Justice Stephen Breyer shows progressive streak (David E. Bernstein and Josh Blackman, 7/12/11, Newark Star-Ledger)
    -VIDEO DISCUSSION: A Conversation on the Constitution with Supreme Court Justices Stephen Breyer and Antonin Scalia (Federalist Society, Dec 5 2006)
    -PROFILE: A Workable Democracy: The optimistic project of Justice Stephen Breyer (Lincoln Caplan, March-April 2017, Harvard Magazine)
    -VIDEO: Active Liberty by Mr. Justice Breyer (The Ponen Mind, 12/12/05, PBS)
    -INTERVIEW: Towards ‘active liberty’ (Robb London and Michael Armini, April 23, 2006, Harvard Law Today)
    -INTERVIEW: Supreme Court Justice Breyer on 'Active Liberty' (Nina Totenberg, September 29, NPR: All Things Considered)
    -LECTURE: On the Liberty of the Ancients Compared with that of the Moderns (Benjamin Constant, 1819)

First ask yourselves, gentlemen, what an Englishman, a Frenchman, and a citizen of the United States of America understand today by the word "liberty."

For each of them it is the right to be subjected only to the laws, and to be neither arrested, detained, put to death, or maltreated in any way by the arbitrary will of one or more individuals. It is the right of everyone to express his opinion, choose a profession and practice it, to dispose of property, and even to abuse it; to come and go without permission, and without having to account for his motives or undertakings. It is everyone's right to associate with other individuals, either to discuss their interests, or to profess the religion that he and his associates prefer, or even simply to occupy their days or hours in a way that is most compatible with his inclinations or whims. Finally it is everyone's right to exercise some influence on the administration of the government, either by electing all or particular officials, or through representations, petitions, demands to which the authorities are more or less compelled to pay heed. Now compare this liberty with that of the ancients.

The latter consisted in exercising collectively, but directly, several parts of the complete sovereignty; in deliberating, in the public square, over war and peace; in forming alliances with foreign governments; in voting laws, in pronouncing judgments; in examining the accounts, the acts, the stewardship of the magistrates; in calling them to appear in front of the assembled people, in accusing, condemning or absolving them. But if this was what the ancients called liberty, they admitted as compatible with this collective freedom the complete subjection of the individual to the authority of the community. You find among them almost none of the enjoyments we have just seen form part of the liberty of the moderns. All private actions were submitted to a severe surveillance. No importance was given to individual independence, neither in relation to opinions, nor to labor, nor, above all, to religion. The right to choose one's own religious affiliation, a right that we regard as one of the most precious, would have seemed to the ancients a crime and a sacrilege.

    -STUDY GUIDE: Active Liberty (Enotes)
    -ESSAY: Supreme Court Justice Stephen Breyer Shows Progressive Streak (David E. Bernstein and Josh Blackman, July 12, 2011, The Newark Star??Ledger)
    -ESSAY: Active Liberty Lives!: Justice Breyer’s opinion in the recess appointments case deals a blow to originalism. (Adam Winkler, July 08, 2014, Slate)
    -ESSAY: Active Breyer: Making the Liberal Bloc Work (Medha Gargeya, October 10, 2010, Harvard Political Review)
    -ESSAY: AN ELASTIC AMENDMENT: JUSTICE STEPHEN G.BREYER’S FLUID CONCEPTIONS OFFREEDOM OF SPEECH (Benjamin Pomerance, Albany Law Review)
    -ESSAY: Comparing and Contrasting the Constitutional Approaches of Justice Scalia and Justice Breyer: Through the Pending Supreme Court Case Schwarzenegger V Entertainment Merchants Association (Katherine E. Moran Ms.Claremont McKenna College)
    -ESSAY: Breyer v. Scalia: Will Alito be an activist or a textualist? ( Julia K. Stronks, January 15, 2006, Seattle Times)
    -ARCHIVES: "Stephen Breyer" (C-SPAN)
    -ARCHIVES: Stephen Breyer (Charlie Rose Show)
    -REVIEW: of Active Liberty by Stephen Breyer (Robert Bork, New Criterion)
    -REVIEW: of Active Liberty (Cass R. Sunstein, The New Republic)
    -REVIEW ESSAY: Conversation, Representation, and Allocation: Justice Breyer’s Active Liberty (Michael A. Livermore, D. Theodore Rave, NYU Law Review)
    -REVIEW: of Active Liberty (Kathleen M. Sullivan, NY Times Book Review)
    -REVIEW: of Active Liberty (Jeffrey Toobin, The New Yorker)
    -REVIEW: of Active Liberty (Pierre Rosanvallon, International Journal of Constitutional Law)
    -REVIEW: of Active Liberty (Richard A. Posner, Yale Law Journal)
    -REVIEW: of Active Liberty (John DiLulio, Weekly Standard)
    -REVIEW: of Active Liberty (Tom Feeney, National Review)
    -REVIEW: of Active Liberty (Bernard G. Prusak, Commonweal)
    -REVIEW: of Active Liberty (Jess Bravin, WSJ)
    -REVIEW: of Active Liberty (Alykhan Velshi, New English Review)
    -REVIEW: of Active Liberty (Intercollegiate Review)
    -REVIEW: of Active Liberty (Publishers Weekly)
    -REVIEW: of Active Liberty (Mark Rush, lawCourts.org)
    -REVIEW: of Active Liberty (Ilya Somin, Northwestern Law Review)
    -REVIEW: of Active Liberty ( Michael W. McConnell, Harvard Law Review)
    -REVIEW: of Active Liberty (Adam Cohen, NY Times)
    -REVIEW: of Active Liberty (Ken I. Kersch, The University of Chicago Law Review)
    -REVIEW: of Active Liberty (Jerome Braun, Logos Journal)
    -REVIEW: of Active Liberty (Perspectives on Political Science)
    -REVIEW: of Active Liberty (George Will, Newsweek)
    -REVIEW: of Reading the Constitution: Why I Chose Pragmatism, Not Textualism by Stephen Breyer (Trey Dimsdale, Religion & Liberty)
    -REVIEW: of Reading the Constitution (Tal Fortgang, The Dispatch)
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