28 Pages Posted: 6 Jun 2006
In this review essay published in the Review of Litigation (Univ. of Texas), I consider Justice Breyer's recent book Active Liberty: Interpreting our Democratic Constitution. Much of the review is a comparison and contrast with Justice Scalia's 1997 work, A Matter of Interpretation: Federal Courts and the Law. I consider Justice Breyer's purposes and consequences approach to interpretation and its application to the process of constitutional and statutory interpretation. I then analyze whether it, or Justice Scalia's texualism and originalism - together, in Justice Breyer's words, literalism - tend to be more amenable to consistent and principled application. I conclude that the two philosophies are not so far apart as they seem. Both can be criticized, if one is so inclined, as placing too great of faith in an unelected federal judiciary. The most attractive aspect of Justice Breyer's book, a call for using all available information in the interpretive exercise, unfortunately is subordinated. It remains to be seen whether Justice Breyer's new publication will help courts in reaching a consistently applicable interpretive philosophy that promises majority acceptance.
Keywords: purpose, consequence, interpretation, construction, statute, statutory, constitution, constitutional, textualism, originalism, literalism, activism, courts, federal courts, judges, living constitution, active liberty, a matter of interpretation, breyer, scalia, supreme court
Suggested Citation: Suggested Citation
Huffman, Max, Using All Available Information. Review of Litigation, Vol. 25, No. 3, pp. 501-528, 2006. Available at SSRN: https://ssrn.com/abstract=906597