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The Embattled Constitution$
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Norman Dorsen

Print publication date: 2013

Print ISBN-13: 9780814770122

Published to NYU Press Scholarship Online: March 2016

DOI: 10.18574/nyu/9780814770122.001.0001

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Our Democratic Constitution

Our Democratic Constitution

(p.7) 1 Our Democratic Constitution
The Embattled Constitution

Stephen Breyer

NYU Press

This chapter examines the role that a more “ancient” liberty—the people's right to “an active and constant participation in collective power”—might play when courts interpret the U.S. Constitution. It compares the liberty of the ancient Greeks and Romans with the “modern liberty” of the eighteenth and nineteenth centuries. It argues that both ancient and modern liberties are important ingredients of liberty, but it urges judges to place greater emphasis on ancient liberty so as to encourage a more flourishing democracy as well as better constitutional law that will promote governmental actions “consistent with individual dignity and community need.” It also discusses examples drawn from the areas of free speech, federalism, privacy, equal protection, and statutory interpretation to illustrate some of the different ways that increased judicial focus upon the Constitution's participatory objectives can have a positive effect. Finally, it proposes an approach to constitutional interpretation that places considerable weight upon consequences—consequences valued by basic constitutional purposes.

Keywords:   ancient liberty, U.S. Constitution, modern liberty, democracy, constitutional law, constitutional interpretation, free speech, federalism, privacy, equal protection

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