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Saturday, June 24, 2006 

McConnell on Breyer

It's usually a pretty big deal when a sitting Supreme Court Justice writes a book. Justice Stephen Breyer's Active Liberty is no exception. The book has gotten a lot of attention. I have yet to read it, but it is on my Summer reading list. Judge Michael McConnell has read it, and he's got a few things to say about it.

Justice Breyer with his other favorite book

McConnell criticizes Breyer's simplification of Constitutional history, specifically the events surrounding the drafting of the Constitution. Breyer doesn't seem to focus on the Federalist and Anti-Federalist debates. McConnell also thinks it is interesting that Breyer seems to ally himself with the Anti-Federalist point of view in the book. McConnell says that there is nothing wrong with that, and there's not. The odd part is that Breyer's record on the bench does not go along with that. The Anti-Federalists and other active liberty folks like Thomas Jefferson believed that government power should be in the hands of locals or the states. McConnell points out the following...
Justice Breyer, by contrast, regularly votes with the wing of the Supreme Court that rejects constitutional claims for the autonomy and authority of state and local governments and supports a broader reading of federal power.
Breyer was a dissenter in the federalism decisions of the Rehnquist Court. He goes on to attack the federalism decisions as being anti-active liberty. Of course, that all depends on what the local and state governments do with their powers. McConnell points out that Breyer even concedes that the federalism cases have encouraged citizen participation in government. Isn't that active liberty?

Michael McConnell, judge, critic, future Justice?

McConnell's review continues on for many pages. He examines Justice Breyer's actual active liberty jurisprudence and its components. There are some notable items missing from Justice Breyer's discussion. Things like stare decisis and the citation of foreign law get little or no examination in the book. McConnell's review seems very comprehensive. I'm still going to read Breyer's book and make up my own mind. I have a feeling that I'll have many of the same criticisms that Judge McConnell has. Even so, I'm glad that Justice Breyer wrote the book. I hope more Justices follow his lead.

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About me

  • I'm Steve
  • From Milwaukee, Wisconsin, United States
  • "There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences." P.J. O'Rourke
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