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Overview

American constitutional law is at a crossroads. In a major new interpretation of the Constitution, Cass Sunstein offers a clear account of our present dilemmas and shows where we might go from here.

As it is currently interpreted, the Constitution is partial, Sunstein asserts. It is, first of all, biased. Contemporary constitutional law treats the status quo as neutral and just, and any departure as necessarily partisan. But when the status quo is neither neutral nor just, Sunstein argues, reasoning of this sort produces injustice. The Constitution is also partial in another sense: its meaning has come to be identified solely with the decisions of the Supreme Court. This was not always the case, as Sunstein demonstrates; nor was it the intention of the country's founders. Instead, the Constitution often served as a catalyst for public deliberation about its general terms and aspirations--and Sunstein makes a strong case for reviving this broader understanding of the Constitution's role.

In light of this analysis, Sunstein proposes solutions to some of the most hotly disputed issues of our time, including affirmative action, sex discrimination, pornography, "hate speech," and government funding of religious schools and the arts. In an especially striking argument, he claims that the equal protection clause of the Fourteenth Amendment--not the right to privacy--protects a woman's right to choose abortion. Sunstein connects these and other debates to the Constitution's historic commitment to public deliberation among political equalsand in doing so, he reconceives many of our most basic constitutional rights, such as free speech and equality under law. He urges that public deliberation about the meaning of the Constitution in turn be freed from a principle of neutrality based on the status quo. His work points to a historically sound but fundamentally new understanding of the American constitutional process as an exercise in deliberative democracy.

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Editorial Reviews

Law & Social Inquiry
Sunstein argues that contemporary constitutional law is 'partial' because its meaning has come to be identified solely with decisions of the Supreme Court and that it is biased because it presumes that the status quo is neutral and just and that any departure is necessarily partisan. Rejecting these characteristics, he conceives basic rights such as freedom of speech, equal protection, and privacy, and proposes new solutions to issues including abortion, affirmative action, sex discrimination, pornography, 'hate speech,' and government funding of religious schools and the arts.
New Republic

Essential reading for anyone who wants to understand the kinds of issues that are dominating the contemporary constitutional agenda and to understand analytical approaches that will become more influential as inevitable generational transformations continue. And, depending on the contingencies of presidential decision making (and senatorial acquiesence), it may be essential reading for anyone trying to predict the future course of judicial construction of the Constitution.
— Sanford Levinson

Washington Post Book World
Taking on the philosophical underpinnings of democracy as well as the ticklish questions of pornography, abortion, welfare, free speech, etc., this book calls all those involved in the American political and judicial processes to a new understanding of the Constitution.
Bookwatch
Sunstein presents a major, new interpretation of the Constitution and considers the bias and partial results of its present interpretation in a lively, involving survey blending history, politics and legal considerations.
Michigan Law Review

Cass Sunstein has convincingly shown that we could reorient our thinking about the Constitution without doing undue violence to our basic institutions or to our constitutional history.
— Robin L. West

Commonweal

Sunstein has produced an essay that is provocative in the best sense of that term; it provokes fresh insight, new ways of thinking about matters that have become dull in the hands of lesser lights. He constructs a compelling general theory of constitional interpretation, according to which 'naked preferences' of vested interests must give way to public values in our 'republic of reasons'...He follows his own canon of intelligibility, writing deftly for those familiar with the methods of constitutional interpretation but rendering these methods accessible to readers who may be complete neophytes.
— Edward McGlynn Gaffney, Jr.

Law and Politics Book Review

Professor Sunstein has written a book that is remarkable in its intellectual ballast...The Partial Constitution offers a sensitive and evocative contribution that will serve as a foundational reference point in the need to forge a new paradigm of constitutional scholarship.
— Gregg Ivers

Law and Philosophy

Cass Sunstein's The Partial Constitution occupies a place among the finest work in recent constitutional theory. It unobtrusively melds political philosophy and economics into its assessment and criticisms of constitutional cases and trends.
— Samuel Freeman

Virginia Quarterly Review
This is a book that cries out for reading by anyone interested in the role of law and social change, or for that matter, anyone moved enough by the idea of democracy to vote.
University of Michigan

Sunstein gives new life to the oldest idea in the book of social criticism: the complaint that we mistakenly believe our current practices are somehow neutral or natural. What's remarkable is Sunstein's ability to explore its intricacies, to visit a wonderfully wide range of Supreme Court decisions and show in fine-grained detail just how they make that mistake. This book offers an invigorating portrait of American constitutional history and theory. It deserves a very wide readership indeed.
— Don Herzog

University of Minnesota Law School

The Partial Constitution may well set the intellectual agenda for constitutional scholarship in this decade. It presents a powerful argument for reconceptualizing constitutional law. On topics ranging from cross-burning to abortion,Sunsteinoffers a formidable challenge to conventional constitutional analysis.
— Daniel A. Farber

Harvard University Kennedy School
Sunstein reorients liberalism away from an undifferentiated distrust of government and toward a more sensitive awareness of desirable uses and misuses of the governmental power that is an inevitable part of modern society. The book thus constitutes a powerful attack not only on many contemporary constitutional understandings about topics such as freedom of speech, freedom of the press, due process, equal protection, and the state action principle, but also on some of the central tenets of classical and modern liberalism.
— Frederick Schauer
Harvard Law School

Sunstein sheds light on contemporary issues of free speech, reproductive freedoms, government subsidies of art and education, and at the same time he launches a profound invitation to shift constitutional debate away from preoccupation with courts and toward arenas of democratic participation. Any serious scholar of the Constitution, and indeed, any serious citizen, should study this important book.
— Martha Minow

New Republic - Sanford Levinson
Essential reading for anyone who wants to understand the kinds of issues that are dominating the contemporary constitutional agenda and to understand analytical approaches that will become more influential as inevitable generational transformations continue. And, depending on the contingencies of presidential decision making (and senatorial acquiesence), it may be essential reading for anyone trying to predict the future course of judicial construction of the Constitution.
Michigan Law Review - Robin L. West
Cass Sunstein has convincingly shown that we could reorient our thinking about the Constitution without doing undue violence to our basic institutions or to our constitutional history.
Commonweal - Edward McGlynn Gaffney
Sunstein has produced an essay that is provocative in the best sense of that term; it provokes fresh insight, new ways of thinking about matters that have become dull in the hands of lesser lights. He constructs a compelling general theory of constitional interpretation, according to which 'naked preferences' of vested interests must give way to public values in our 'republic of reasons'...He follows his own canon of intelligibility, writing deftly for those familiar with the methods of constitutional interpretation but rendering these methods accessible to readers who may be complete neophytes.
Law and Politics Book Review - Gregg Ivers
Professor Sunstein has written a book that is remarkable in its intellectual ballast...The Partial Constitution offers a sensitive and evocative contribution that will serve as a foundational reference point in the need to forge a new paradigm of constitutional scholarship.
Law and Philosophy - Samuel Freeman
Cass Sunstein's The Partial Constitution occupies a place among the finest work in recent constitutional theory. It unobtrusively melds political philosophy and economics into its assessment and criticisms of constitutional cases and trends.
University of Michigan - Don Herzog
Sunstein gives new life to the oldest idea in the book of social criticism: the complaint that we mistakenly believe our current practices are somehow neutral or natural. What's remarkable is Sunstein's ability to explore its intricacies, to visit a wonderfully wide range of Supreme Court decisions and show in fine-grained detail just how they make that mistake. This book offers an invigorating portrait of American constitutional history and theory. It deserves a very wide readership indeed.
University of Minnesota Law School - Daniel A. Farber
The Partial Constitution may well set the intellectual agenda for constitutional scholarship in this decade. It presents a powerful argument for reconceptualizing constitutional law. On topics ranging from cross-burning to abortion author Sunstein/author offers a formidable challenge to conventional constitutional analysis.
Kennedy School, Harvard University - Frederick Schauer
Sunstein reorients liberalism away from an undifferentiated distrust of government and toward a more sensitive awareness of desirable uses and misuses of the governmental power that is an inevitable part of modern society. The book thus constitutes a powerful attack not only on many contemporary constitutional understandings about topics such as freedom of speech, freedom of the press, due process, equal protection, and the state action principle, but also on some of the central tenets of classical and modern liberalism.
Harvard Law School - Martha Minow
Sunstein sheds light on contemporary issues of free speech, reproductive freedoms, government subsidies of art and education, and at the same time he launches a profound invitation to shift constitutional debate away from preoccupation with courts and toward arenas of democratic participation. Any serious scholar of the Constitution, and indeed, any serious citizen, should study this important book.
Booknews
Sunstein (jurisprudence, political science, U. of Chicago) asserts that, as it is currently interpreted, the Constitution is biased. He points to two contemporary mistakes: that Constitutional law posits the status quo as neutral and just (which, he argues, is not the case); and that the meaning of the Constitution is increasingly solely within the purview of the Supreme Court (which, he argues, is not what the founders intended.) Annotation c. Book News, Inc., Portland, OR (booknews.com)
Gregg Ivers
In October 1991, I experienced the thrill of watching the baseball team I had grown up with, the Atlanta Braves, play in the World Series. Not to sound ungrateful, but the excitement of the moment was tempered by the conditions under which I had to watch the two games I attended. No, I was not bothered or distracted by the constant chanting that accompanied the trademark expression of Atlanta fans, the notorious Tomahawk Chop. Had I been fortunate enough to attend the Series in Atlanta, I would have enthusiastically joined in. Instead, I watched the Braves in what must be the worst place in the entire world in which to play baseball that has ever been built -- the Metrodome in Minneapolis, home to the Minnesota Twins. The Twins won the Series in seven games. But I will always contend that had the Twins had to play real baseball (no designated hitter) under real conditions (no artificial turf, no white-domed ceiling that makes it almost impossible to see a pop-up or fly ball, normal outfield dimensions and no huge trash bag for an outfield wall) the Braves would have won. I pointed out to my friend who took me to the Series, himself a National League expatriate, that baseball under such conditions violated all the understood norms of the game from time immemorial. As I mused how much better the game would be if returned to its traditional roots, my friend interjected. "What about night baseball? Get rid of that, too?" he asked. "Different," I said. "What about the reserve clause," he continued. "A different issue," I said. "That was indentured servitude." Ever the Socratic questioner, my friend asked, "Well, wasn't it better when the same players played for the same team every year? Didn't that establish more community? Could you really see DiMaggio or Koufax in different uniforms every year? When you think about it, free agency wasn't progress at all." I saw where this was going, so I pulled out my standard response when the force of reason is not on my side. "Look," I said, "it's just different. And if you can't see that, I'm not going to waste my time talking about it. Do yourself a favor: Go watch hockey and leave baseball in the hands of people who understand how the game was meant to be played." I do not know if Cass Sunstein is a baseball fan. But if he does appreciate the game, he might agree with me that serious students of baseball and constitutional theorists share a common obsession with the myths and realities of the past, the limits and possibilities of innovation, the sometimes unavoidable collision course between original intent and the forces of modernization, and, above all, the development of rules and procedures, which are enforced on a neutral and generally applicable standard, that insure no one team or individual gains a systemic advantage over another, but succeeds or fails based on the merits. Let us turn to a couple of examples: In baseball, all batters are entitled to the same number of balls and strikes, regardless of their skill. Under the federal Constitution, all citizens stand equal before the law, regardless of their color, gender, national origin, race or religion. These are rules that are neutral on their face, since no one is singled out for different treatment. But where the similarities between constitutionalism and baseball become even more apparent is when the rules undergo change. In 1972, the American League adopted a rule that allowed each team to "designate" a hitter for the pitcher, traditionally the worst offensive player in Page 90 follows: the line-up, without the pitcher having to leave the game. Fans do not watch games to see the pitcher bat, league officials reasoned, so why not relieve them of that burden, inject some additional offense into the game, and liven things up. While baseball nonoriginalists cheered the American League's decision as necessary in light of evolving societal standards, traditionalists hissed the rule change, claiming that administrative overseers, without the consent of their fans, usurped the game's original design. So much for the sacrifice bunt, the bunt and run, the tough late inning pitching changes, the strategic use of pinch-hitters, complained the baseball originalists. All these established customs and traditions that had been intertwined with the game since its origin were suddenly reduced to rubble with the stroke of an administrative pen. Baseball originalists, as I (and Professor Sunstein might) will call them, remain furious over what they see as a unjustified partisan departure from the established rules of baseball that had been in place for years. But I surmise that Professor Sunstein might also ask whether this rule change was a departure from neutrality, or just the replacement of one partisan rule with another. For baseball traditionalists, as well as constitutional theorists, Professor Sunstein has posed a tough question: What makes one rule change any less partisan than the change that put the previous status quo into place? In THE PARTIAL CONSTITUTION, Cass Sunstein has pulled together a decade's worth of serious thinking on the principle of neutrality in constitutional law into a superb, sophisticated and quite readable book. Professor Sunstein states his thesis upfront and in parsimonious fashion: the search for neutral principles in constitutional method and interpretation will forever remain a fruitless one because the nature of the enterprise itself cannot help but be guided by value-positive judgments. Whether such value-choices are reflected in new approaches to constitutional method, in the substantive principles that give ultimate meaning to constitutional provisions, or in the changes in societal norms and mores that lead our legal and political institutions to shed previous rules in favor of new ones, differences over the worth of those choices will divide the participants who made them. The consequent debate centers on whether such choices are consistent with the nonpartisan, status quo baseline of the extant constitutional order rather than assessing the wisdom of the substantive value- choices or asking whether such choices are consistent with the shared principles of the American constitutional tradition. Professor Sunstein's criticizes the trend in constitutional scholarship that views the status quo in constitutional interpretation as the foundation from which neutral principles emanate. If the status quo is equated with neutrality, then judicial departures from it smack of partisanship and moral rootlessness. When the law moves in a direction that shakes the status quo and consequently forces a reconsideration of settled practices associated with previous constitutional doctrine or discards them altogether, defenders of the old order criticize such innovation as if it were a heretical violation of the state of nature. Because constitutional theorists, whether a self- proclaimed originalist such as Robert Bork, or a modern noninterpretivst such as Lawrence Tribe, remain committed to the distinction between law and politics, justification for change must invoke the language of law and interpretative principles. Professor Sunstein argues that these criteria value above all a professed commitment to neutral principles. If constitutional theorists ever confessed that their substantive preferences influenced their methodological approaches to constitutional interpretation on such questions as whether the Constitution guarantees the right to abortion, permits or prohibits affirmative action, or allows public universities to ban racist or sexist speech, the crucial distinction between law (which is authoritative) and politics (which reflects majoritarianism) is blurred. For the Constitution to remain law, and thus bind public officials and private citizens, it cannot mean what judges, legislators or defiant constituencies want it to mean at a given moment. Language, structure and the historical record must inform the interpreter's confrontation with the constitutional text, whatever their political or policy preferences, or else the Page 91 follows: enterprise simply becomes an exercise in personal value-choice. Professor Sunstein contends this either-or choice that forms the dominant paradigm in constitutional scholarship is a false one. Text and intent are fundamental and essential tools in constitutional interpretation; but when language and historical record do not resolve the clear intent of a constitutional provision, those who interpret the text are drawn to nontextual sources to inform their understanding of it. Originalists have criticized the use of nontextual sources to guide constitutional interpretation, on the premise that to depart from text and framers' intent is to contaminate the process of value-neutral adjudication. Professor Sunstein rebuttal to originalist jurisprudence, or what he calls constitutional formalism, is comprehensive and persuasive. Regardless of one's self-professed commitment to reliance on text and intent, substantive preferences enter into the process of constitutional adjudication. Rather than admit that constitutional interpretation cannot help but involve hard choices between competing values, formalists prefer to make such choices covertly. Professor Sunstein is on firm ground here. One has an almost limitless choice of targets with which to support Professor Sunstein's claim that constitutional formalism is riddled with internal contradictions, whether the question involves the enumerated provisions of the Constitution, or the debate over what unspoken rights are nonetheless covered by the document's guarantees to liberty and equality. But the weakness of formalism's attempted defense of a value-neutral approach to constitutional interpretation forms the crux of its challenge to what Professor Sunstein calls the search for substantive principles to inform this enterprise. Political preference and constitutional jurisprudence form a nexus in the formalist approach to interpretative principles, but the same can -- and must -- be said for its critics. Constitutional modernists who support the use of nontextual sources and the ever-popular evolving societal standards rationale to interpret the Constitution must defend the use of such judicial discretion when political majorities have expressed the opposite view. Why are courts permitted to set aside the populace's belief on abortion, race-based remedies or the death penalty? How, for example, can a plausible argument be made that the Constitution prohibits the death penalty per se, when the text and intent of the document offer no clear basis for such a position? Justices William Brennan and Thurgood Marshall used to cite the "evolving societal standards" principle to support their judicial opinions that argued against capital punishment. But I am not sure to whose societal standards these two formidable jurists were referring, since public opinion has and continues to support capital punishment with great enthusiasm. Democratic principles require deference to majority preferences, even more so when the text and intent of a constitutional provision seems to support that position as justified. Does this mean that courts can ignore the weight of such evidence in their own deliberations? Professor Sunstein does not answer this question. To be fair, this is one of the few substantive areas of civil rights and liberties that he does not treat in his book. But if he had, I suspect that Professor Sunstein would argue that societal standards can evolve to the point where previous conceptions of a substantive constitutional provision are rejected in favor of a new one. Here is where Professor Sunstein's impressive grasp of law, political science and philosophy comes together to suggest an approach to constitutional interpretation that is more complex and subtle than the either-or paradigm of constitutional scholarship he criticizes as outmoded. Unlike the constitutional liberalism that deified the Warren Court and made judicial review the engine of social and political reform, Professor Sunstein argues that such innovation is better grounded in democratic principles when it is deliberative in nature. A constitutional liberalism that makes the courts the epicenter of societal change fails to adhere to the Constitution's great and enduring call for deliberative democracy. Rather than proceed from a false baseline of status quo neutrality, this dialogue should center on what Page 92 follows: Professor Sunstein identifies as the shared commitments of the American constitutional and political tradition -- political equality, liberty, citizenship, democratic deliberation, and agreement on an ideal politics -- to determine the substantive values that inform text and structure of the Constitution. Professor Sunstein has written a book that is remarkable in its intellectual ballast. This is complex stuff. Its scope is broad, but never departs from its centrifugal thesis -- that constitutional scholarship must reorient itself away from the dysfunctional either-or paradigm and begin to acknowledge the need for democratic deliberation. Readers will disagree with Professor Sunstein's position on what specific outcomes the Constitution does and does not require of these shared values, but will remained impressed by his thoughtful and scholarly manner. Legal authoritarianism, a phrase that he uses to describe the absolutist jurisprudence of liberal icons such as Justices Hugo Black and William O. Douglas, is not the core of Professor Sunstein's case. Rather, THE PARTIAL CONSTITUTION offers a sensitive and evocative contribution that will serve as an foundational reference point in the need to forge a new paradigm of constitutional scholarship. This book is welcome news for students of constitutional law jurisprudence. Baseball originalists, on the other hand, should look elsewhere.
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Product Details

  • ISBN-13: 9780674654792
  • Publisher: Harvard University Press
  • Publication date: 8/19/1998
  • Edition description: REI
  • Edition number: 1
  • Pages: 428
  • Product dimensions: 6.20 (w) x 9.10 (h) x 1.00 (d)

Meet the Author

Cass R. Sunstein is Robert Walmsley University Professor and Felix Frankfurter Professor of Law at Harvard University.
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Table of Contents

Introduction

I. In General

1. A Republic of Reasons

2. The Revolution of 1937

3. Status Quo Neutrality in Contemporary Law

4. Interpreting the Constitution: Method

5. Interpreting the Constitution: Substance

6. Democracy, Aspirations, Preferences

II. Applications

7. Speech in the Welfare State: A New Deal for Speech

8. Speech in the Welfare State: The Primacy of Political Deliberation

9. Pornography, Abortion, Surrogacy

10. "It's the Government's Money": Funding Speech, Education, and Reproduction

11. The Limits of Compensatory Justice

Conclusion: The Impartial Constitution

Notes

Index

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