A Constitution of Many Minds: Why the Founding Document Doesn't Mean What It Meant Before

by Cass R. Sunstein

Overview

The future of the U.S. Supreme Court hangs in the balance like never before. Will conservatives or liberals succeed in remaking the court in their own image? In A Constitution of Many Minds, acclaimed law scholar Cass Sunstein proposes a bold new way of interpreting the Constitution, one that respects the Constitution's text and history but also refuses to view the document as frozen in time.


Exploring hot-button issues ranging from presidential power to same-sex relations to gun rights, Sunstein shows how the meaning of the Constitution is reestablished in every generation as new social commitments and ideas compel us to reassess our fundamental beliefs. He focuses on three approaches to the Constitution—traditionalism, which grounds the document's meaning in long-standing social practices, not necessarily in the views of the founding generation; populism, which insists that judges should respect contemporary public opinion; and cosmopolitanism, which looks at how foreign courts address constitutional questions, and which suggests that the meaning of the Constitution turns on what other nations do.


Sunstein demonstrates that in all three contexts a "many minds" argument is at work—put simply, better decisions result when many points of view are considered. He makes sense of the intense debates surrounding these approaches, revealing their strengths and weaknesses, and sketches the contexts in which each provides a legitimate basis for interpreting the Constitution today.


This book illuminates the underpinnings of constitutionalism itself, and shows that ours is indeed a Constitution, not of any particular generation, but of many minds.

Product Details

ISBN-13:	9780691152424
Publisher:	Princeton University Press
Publication date:	09/04/2011
Pages:	240
Product dimensions:	6.00(w) x 9.20(h) x 0.70(d)

About the Author

Cass R. Sunstein is currently on leave from his position as the Felix Frankfurter Professor at Harvard Law School to serve as Administrator of the Office of Regulation and Information Policy in the Obama administration. His many books include Republic.com 2.0 (Princeton), Worst-Case Scenarios, and Nudge.

Table of Contents

Preface ix

Introduction: Jefferson's Revenge 1

Part I. Preliminaries 17

Chapter 1. There Is Nothing That Interpretation Just Is 19

Part II. Traditionalism 33

Chapter 2. Burkean Minimalism 35

Chapter 3. Rationalists vs. Burkeans 60

Chapter 4. Due Process Traditionalism 93

Part III. Populism 123

Chapter 5. Backlash's Travels 125

Chapter 6. Public Opinion and Social Consequences 140

Chapter 7. Public Opinion and Judicial Humility 165

Part IV. Cosmopolitanism 185

Chapter 8. What Other Nations Do 187

Afterword 210

Acknowledgments 217

Index 219

What People are Saying About This

Sanford Levinson

Sunstein presents an elegant and fascinating argument, and he consistently tries to play fair with the views he is assessing. He covers many areas and has provocative things to say about them. A Constitution of Many Minds is a fine book that is sure to provoke much discussion.
— Sanford Levinson, author of "Our Undemocratic Constitution"

Tribe

What distinguishes the most important minds is less the answers they offer than the questions they ask. Who but Cass Sunstein would think to ask what unites the arguments and assumptions of traditionalists, populists, and cosmopolitans in constitutional interpretation and elsewhere—and what influences the force of those arguments at different times and in different places? Exploring those questions with his characteristic elegance and insight, Sunstein—the most prolific and significant legal scholar of our time—has written a brilliant book for all seasons.
— Laurence H. Tribe, Harvard Law School

Kim Lane Scheppele

Sunstein combines diverse theories of constitutional interpretation into one coherent framework. That framework is captured by the book's title—A Constitution of Many Minds. This book is likely to be widely read and highly cited.
— Kim Lane Scheppele, author of "Legal Secrets"

From the Publisher

"What distinguishes the most important minds is less the answers they offer than the questions they ask. Who but Cass Sunstein would think to ask what unites the arguments and assumptions of traditionalists, populists, and cosmopolitans in constitutional interpretation and elsewhere—and what influences the force of those arguments at different times and in different places? Exploring those questions with his characteristic elegance and insight, Sunstein—the most prolific and significant legal scholar of our time—has written a brilliant book for all seasons."—Laurence H. Tribe, Harvard Law School

"Sunstein combines diverse theories of constitutional interpretation into one coherent framework. That framework is captured by the book's title—A Constitution of Many Minds. This book is likely to be widely read and highly cited."—Kim Lane Scheppele, author of Legal Secrets

"Sunstein presents an elegant and fascinating argument, and he consistently tries to play fair with the views he is assessing. He covers many areas and has provocative things to say about them. A Constitution of Many Minds is a fine book that is sure to provoke much discussion."—Sanford Levinson, author of Our Undemocratic Constitution

Editorial Reviews

Winner of the 2009 PROSE Award in Law & Legal Studies, Association of American Publishers

From the Publisher

We would do well to have more thinkers around like Sunstein, and better yet to have more of them on the Supreme Court.

DC Lawyer Magazine - Leonard H. Becker

Sunstein has a knack for identifying the operative kernel of complex ideas in a way that allows the reader to see how an unfamiliar concept links seemingly disparate problems.

New York Law Journal - Azuz Huq

Applying . . . insights to the field of constitutional law, the book develops, in elegant and careful prose, a novel collection of arguments within their discipline. The author [has] raised a number of fresh and controversial issues, and, as a result, [his] work is certain to be widely read and much discussed.

Texas Law Review - N.W. Barber

We would do well to have more thinkers around like Sunstein, and better yet to have more of them on the Supreme Court.
— Leonard H. Becker

DC Lawyer Magazine

Sunstein has a knack for identifying the operative kernel of complex ideas in a way that allows the reader to see how an unfamiliar concept links seemingly disparate problems.
— Azuz Huq

New York Law Journal

Applying . . . insights to the field of constitutional law, the book develops, in elegant and careful prose, a novel collection of arguments within their discipline. The author [has] raised a number of fresh and controversial issues, and, as a result, [his] work is certain to be widely read and much discussed.
— N.W. Barber

Texas Law Review

Sunstein (Harvard Law Sch.; Worst-Case Scenarios), currently information and regulatory affairs administrator in the Obama adminstration, engages us in a conversation about the enduring issues of American constitutional law and how society can create changes in constitutional understanding. He looks at three means of constitutional interpretation-traditionalism, populism, and cosmopolitanism-which, respectively, stress the role of traditions, the significance of public opinion, and the importance of foreign law in creating our present constitutional arguments. As Sunstein explains, each approach overlaps with the other. Sunstein carefully analyzes each approach and shows that all create a central dilemma in constitutional law; for example, the traditionalism approach limits some aspects of due process activities. He also examines the consequences of each approach to determine whether it would make our constitutional order better or worse. He sees the new social and political commitments of citizens and political leaders, as well as the courts, as key elements in redirecting constitutional interpretation. Highly recommended for scholarly audiences and lay readers interested in current constitutional studies.
—Steven Puro

Library Journal