Justice Breyer writes on 'active liberty'

Oct. 2, 2005 at 1:19 PM
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WASHINGTON, Oct. 2 (UPI) -- U.S. Supreme Court Associate Justice Stephen Breyer said judges should try to enhance the ability of people to participate in government processes.

"The people who wrote the Constitution really didn't think that there would be an Internet. They thought the commerce clause would apply in the future but not just to horses. They didn't dream of automobiles, they didn't dream of television and they didn't dream of Internet, computers, all the things that affect our privacy, for example," Breyer told ABC's "This Week with George Stephanopoulos," Sunday.

The Constitution's commerce clause gives Congress alone the power to regulate interstate commerce.

"So there's not going to be a way to look back and say, 'What did Thomas Jefferson say about the application of the First Amendment to this particular instance?'

"The only way to do that, in my opinion, is to look back to the basic value underlying the First Amendment; it's trying to create, in part, a forum for people to discuss public affairs," Breyer said. "And once you see that, you begin to have a tool that helps you decide a particular case."

Breyer's book, "Active Liberty: Interpreting Our Democratic Constitution," says judges, when they decide cases, ought to try to enhance active liberty -- enhancing the ability of ordinary people to participate in government.

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