Review Essay: Using All Available Information

This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining the “purposes” of texts and interpreting them to produce “consequences” consistent with those purposes, is preferable to Justice Scalia’s textualism. I argue that Justice Breyer’s philosophy relies on jurists to approach the interpretive process carefully and produces results more consistent with democratic objectives. Nonetheless, I argue Justice Breyer came up short by failing to articulate an interpretive method for lawyers and judges to follow, while Justice Scalia purports to offer a clear method for application. I also propose that it may be possible to synthesize the two seemingly irreconcileable interpretive philosophies into a single approach by concentrating on the range of information allowed to be considered in the search for statutory or constitutional “purpose.