At Law & Liberty, John McGinnis: Unmooring the Constitution. From the introduction:
Cass Sunstein is the most cited active law professor and a barometer of the left-liberal jurisprudential thought that dominates the legal academy. For this reason alone, his recent book, How to Interpret the Constitution, is worth reading. And it is well-written and novel, even if disjointed and unpersuasive.
Sunstein’s premise is that a theory of constitutional interpretation should make society better rather than worse. To figure out whether a theory will do that, Sunstein believes we must begin by assessing the consequences of important constitutional cases. Correct outcomes in these cases constitute the “fixed points” for a theory. They are “provisional,” because the interpreter must then make sure that these fixed points “line up with one another and do not contradict one another.” To arrive at the final choice of an interpretive theory, a judge may also consider cross-cutting considerations, like the capacity of the theory to make judgments based on objective considerations rather than personal preferences.
Thus, Sunstein argues that one’s fixed constitutional points will not simply be one’s fixed policy points. He claims that an interpretive theory’s mediation between our assessment of the outcomes of particular cases and more general considerations applies John Rawls’s reflective equilibrium method, in which provisional moral judgments about particular situations are tested against more general theories of morality, like utilitarianism, to help us arrive at a correct moral theory.
In the book, Sunstein offers his own fixed points. They include the rightness of Brown v. Board of Education, the constitutionality of broad delegations to the executive branch, and the constitutionality of regulating independent expenditures in support of political campaigns. These are apparently points to which any reasonable person should assent, although he also has some points with which he thinks reasonable people may disagree. He argues that taken together, his fixed points currently rule out various interpretive theories popular on the right, such as originalism and traditionalism, as well as theories of judicial review extremely deferential to the legislature like that of James Bradley Thayer.
And from the conclusion:
… Sunstein’s theory of fixed points suffers from multiple fatal problems. It requires knowledge that is difficult if not impossible to acquire, it fails to create a jurisprudence of any determinacy, and it provides a recipe for intractable constitutional division. No Court justice—not even the opponents of originalism for whom this book is written—will use it to choose among constitutional theories. But like Sunstein’s other work, the current generation of law professors is sure to cite it widely.
Posted at 6:03 AM