Disappointing "Liberty"

Picking up on the Justice Breyer theme from earlier today, there have been a number of reviews (see here and here, for examples) of his recent book, Active Liberty, floating around the net. Actively advertised before its release as a seminal counterpoint to Justice Scalia's A Matter of Interpretation, (both works are actually collections of lectures given by the justices and edited into book format) Breyer's new missive has so far proven more of a dud than an explosive new statement of jurisprudence.

Upon reading the book, it's fairly clear why Active Liberty has failed to meet expectations. Breyer's thesis is fairly clear: the Court should attempt to enhance popular participation in governing, which sometimes takes the form of deference to legislative actions but sometimes requires a "consequentialist" approach to interpreting the constitution (see the previous Breyer post). However, the great shortcoming of Breyer's work is that he fails to reconcile the Court's cases on due process and "fundamental rights" with his erstwhile goal of maximizing majority participation and rule. In fact, he barely discusses the seeming disparity at all. Further, though Breyer points out several objections to his arguments in a chapter near the end of his short tome, including some related to his consequentialist theory, he then strangely fails to address those doubts, as if the answers were readily apparent from the rest of the book. They aren't. Breyer may be able to produce a work that stands as an effective counterpoint to the views of the Scalia camp, but Active Liberty isn't it.

(Hat tips to Bench Memos and SCOTUSblog for the links)