AJ 025 Chapter Notes - Chapter 1: Judicial Activism, Antonin Scalia, Campaign Finance

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AJ 25
Constitutional law
Active Liberty
Breyer’s reply to Scalia
Tries to dress up consequentialism with active liberty, and a claim that he
embraces judicial modesty, that is a constraint
Pg. 18: legislative history can be a window into purpose
Pg. 63: logical reasoning about the text subordinate to consequences
Criticism of Breyer: Democratic constitution - democracy simply means rule by majority,
it’s quantitative majority rule; the framers set out to make quality majority rule (quality of
that policy)
Pg. 3: brings the term “Active liberty” by a French philosopher (Benjamin
Two kinds of liberty: liberty of the ancients (active liberty) and modern liberty
(freedom from governmental oppression)
Look at the Constitution: no place for citizens to participate in government except
through voting
Everything in the Constitution is designed to protect modern liberty
Pg. 5: Problem with thesis: Why do we want a balance of a French philosopher in
the Constitution? (balance between active and modern liberty)
Pg. 8: Trying to describe the Constitution as Democratic
All of that is modern liberty
Various courts have emphasized property rights
Pg. 10: where’s the judicial modesty in Breyer striking down Obrenfeld v Hodges
Pg. 17 - Irony: no justice has been more of a judicial activist than Breyer
Pg. 18: admits that his consequentialism can lead to willfulness
Opposite of this is being wooden (Scalia)
Breyer avoid being both wooden and willful by searching for purpose (pg. 19)
Pg. 24: Points to a constitution that was really active liberty” - the Pennsylvania
Active liberty proved to be a total disaster
Idea: The people are sound but governments aren’t (6 month terms)
Result: Had a taste of active liberty; wised up and said no, need checks
and balances
Framers created a commercial republic relying on self-interest
The only active liberty is if Congress wants an amendment ratified by convention
Focuses on Speech - Campaign finance (pg. 45-46)
What about the Bipartisan campaign reform act? Puts limits on how much
individuals backing that candidate can contribute to assist;
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