HOW SHOULD THE SUPREME COURT INTERPRET THE CONSTITUTION?

Tuesday, September 13th, 2005

This question lies at the heart of the intense recent debates over judicial nominations, and could have important implications for public policy. Some argue that the Constitution should always mean what the Founding Fathers intended. The problem with this view is that it could lead to results that many would find abhorrent. For example, it would permit the federal government to discriminate on the basis of race and sex, and it would eliminate the right to privacy. Others argue instead that judges should interpret the Constitution to make it the best that it can be. But this view, symbolized by Roe v. Wade, gives far too much power to unelected judges. Professor Cass Sunstein argues in his new book, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, that the best approach is a form of cautious incrementalism. He suggests that judges build on their precedents, but show a reluctance to strike down the decisions of the elected branches.

AGENDA

Tuesday, September 13th, 2005
10:15 a.m.-12:00 p.m.
Wohlstetter Conference Center
Twelfth Floor, AEI
1150 Seventeenth Street, NW
Washington, DC 20036

Cass Sunstein

University of Chicago

Cass Sunstein presented four approaches to constitutional law: bipartisan restraint, perfectionism, minimalism, and fundamentalism. Basing his comments on his new book, Radicals in Robes, Sunstein briefly sketched out each of the four approaches.  Sunstein explained that under bipartisan restraint, Roe v. Wade is an “atrocity,” while   affirmative action is “fine.”  Perfectionists try to make the Constitution “the best it can be.” Minimalists “like nudges and dislike earthquakes,” while fundamentalists try to keep the Constitution strictly faithful to the framers’ original intentions.

The first two categories have little representation on the current bench.  Not one judge follows bipartisan restraint. Additionally, no one practices perfectionism in the way that Justices Marshall, Brennan, and Douglas did.  Sunstein argued that perfectionism and fundamentalism are inappropriate, but fundamentalism is the danger we face currently.

Sunstein continued to discuss some of the chief theorists, practitioners, and problems with each approach. Beginning with bipartisan restraint, he noted that the movement’s most prolific theorist was James Bradley Thayer.  In 1893, Thayer penned, “Whatever is rational is constitutional.”  Oliver Wendell Holmes was bipartisan restraint’s great practitioner.

Perfectionism’s great theorist was Ronald Dworkin.  Perfectionism, according to Sunstein, takes the view that legal interpretation is a matter of casting the existing legal materials in the best constructive light.  Roe v. Wade is an example of a perfectionist decision.  This approach has three problems.  The first is judicial error.  Judges are human and their judgments about how to make the Constitution the most perfect can make it less perfect. The second problem is that even if judges were very good at constitutional perfection, their rulings might not be effective.  For example, in 1964 – ten years after Brown v. Topeka Board of Education—less than 2 percent of African-American children in the south were attending desegregated schools. Also, the increase in legal abortions was greater in the three years preceding Roe v. Wade than in the three years after the decision.  Third, perfectionism does not take democracy seriously enough.  It compromises self-government and can make our constitutional democracy less perfect.

Minimalists want judicial decisions to be narrow rather than wide, and they prefer shallowness over depth.  The problems with minimalism are that it is unpredictable, and, if a theory is actually right, then minimalism will lead to blunders.  These blunders presumably might occur because minimalism encourages a narrow application of theory.

Fundamentalism’s leading practitioner is Justice Clarence Thomas.  Fundamentalism, Sunstein noted, has four problems: fundamentalists can be selectively faithful to their creed, fundamentalism may be self-defeating, issues that we think about today (e.g. wiretapping) are not coherent in the context of the original framers’ intentions, and the consequences of fundamentalism can be severe.

Jeffrey Rosen

George Washington University

Rosen began by lauding Sunstein’s book, noting that it is powerful and that one of its strongest features is its detailed criticism of the Constitution-in-exile movement.  Rosen expressed some questions, however, about Sunstein’s categorizations.  He remarked that justices Scalia and Thomas are both fundamentalists by Sunstein’s definition, but that Scalia is less likely to overturn precedents with which he disagrees.  Rosen suggested that Scalia and Thomas might actually be “conservative perfectionists.”  Rosen also noted that we need a more rigorous definition of what a minimalist actually is and who the leading minimalists are. He pointed out that the view of minimalism reported by Sunstein includes both the two most activist judges and the two most restrained.

Rosen closed by enthusiastically endorsing bipartisan restraint, the approach most closely associated with Justice Holmes and Justice Frankfurter.

George Will

Washington Post

Will answered a question posed earlier by Sunstein, “Why should living people be governed by the decisions of those who died long ago?” He defended the framers and the originalist perspective, explaining that they were very intelligent, and that with no regard for them, we do not have a constitution that constitutes.

Will took issue with Sunstein’s explanation of originalism.  He suggested that our society is unwilling to live with its consequences today. Will criticized Sunstein’s defense of Justice Breyer’s book in The New Republic. In the end, however, Will expressed that he does share Sunstein’s inclination towards “incompletely theorized agreements.” He believes it is a form of judicial modesty and that there is no single, overriding constitutional purpose upon which acts of Congress should be based.

Cass Sunstein concluded by responding to the discussants. On the Establishment Clause, Sunstein believes that the court should uphold ceremonial deism, unless it is highly sectarian.  He also emphasized that minimalism does not mean restraint - minimalists can be invalidators, and in that sense they can be activists.  There can be both activist minimalists and restrained minimalists.

AEI-Brookings Joint Center Research Assistant Laura Goodman prepared this summary.