Justice Stephen Breyer has recently published a book titiled "Active Liberty", in which he defends the "living" Constitution philosophy. Rep. Tom Feeney has an excellent review of it on National Review Online. One of the quotes from Justice Breyer's book:
Why should courts try to answer difficult federalism questions on the basis of logical deduction from text or precedent alone? Why not ask about the consequences of decision-making on the active liberty that federalism seeks to further?Rep. Feeney then adds:
While the finer points of this argument may be lost on me (what is the difference between active liberty and inactive liberty), I cannot agree with a judge looking beyond law and precedent. That is not the judge's job! If there is a problem socially, morally, etc, than the correct course to fix it is through the legislature. Not the courts.
Breyer confirmed this view in this exchange with George Stephanopoulos on ABC's This Week on October 3, 2005:Stephanopoulos: Let me get you to respond to some of your critics, one of them is Rep. Tom Feeney, a member of the House Judiciary Committee. He says nobody but a subjective, biased judge can determine what "active liberty" means. And he calls your approach jurisprudential mysticism.
Breyer: Well, everyone can read this and come to any conclusion they want about it. That's fine. It's his view, not my view.
Stephanopoulos: How do you guard against the idea that it is subjective?
Breyer: That's a very good question. What I try to do in the book is to show that actually a system that refers back in the judge's mind, a framework to basic purposes and then looks at consequences in light of those purposes is more likely to lead to objective decision making, is less likely to lead to subjective decision making.