Review de How to Interpret the Constitution, de Cass Sunstein

Mi primera participación en el gran blog de Jack Balkin, Balkinization https://balkin.blogspot.com/

revisando críticamente uno de los últimos libros del amigo y maestro Cass Sunstein

Back to the sources: How to interpret the Constitution, according to Cass Sunstein (Part I)

 

 Roberto Gargarella

 

Back to sources

 

In what follows, I shall present and critically examine the book How to Interpret the Constitution, recently published by the influential jurist Cass Sunstein. I shall divide my study into two parts: the first one, mainly descriptive, where I shall present the book under analysis; and the second one, more evaluative, where I shall offer a critical review of Sunstein’s work. 

 

Sunstein’s new book is a simple, brief, and exciting work through which the Harvard professor deals with a complex subject, such as constitutional interpretation -perhaps the most crucial subject in the theory of law. In order to explore this challenging issue, Sunstein invokes authors, concepts and principles he had already discussed and defended long ago. In this sense -one could claim- Sunstein "returns to the sources" of his academic career.

 

This “return to the sources” may be considered a cause for celebration because many of those bases -I shall maintain- were very good. They hark back to a Sunstein committed to robust ideas of democracy, social justice, and equality. In any case, despite the attractiveness of the main theme under study, and the interesting approach proposed by Sunstein on the subject, the balance of the work is uneven: the text is as attractive in some of its conclusions as it is fragile in some of its foundations.

 

Initial questions

 

Sunstein's undertaking in this new book is as limited as it is valuable: to deepen the reflections on the theory of constitutional interpretation, which he had already advanced decades ago. His main objective is to answer a fundamental question, which is made explicit at the beginning of his work: How to choose a theory of constitutional interpretation? His attempt to respond to this question is based on some relevant assumptions, beginning by the one that says that "the Constitution does not contain the instructions for its interpretation" (Sunstein, 2023, p. 9). Another crucial assumption, presented in Chapter 1 of the book, is the idea that there are several interpretive theories "in competition with each other". More precisely, for Sunstein, there are many and varied interpretive theories that have sufficient standing to be considered "candidates" for interpreting the Constitution.[1] Through his book, Sunstein presents and explores some of these theories, including the following: textualism, semantic originalism, intent originalism, Lawrence Solum's "public meaning" originalism, expectations originalism, John Ely's protection of democracy, traditionalism, Ronald Dworkin's moral readings, Thayerism, common law constitutionalism, and Adrian Vermeule's common good constitutionalism.

 

Faced with the crucial question of "which theory to choose," Sunstein offers a plain answer, which is the following: "Judges (and others) should choose the theory that would make the American constitutional order better rather than worse" (Sunstein, 2023, p. 8). This answer -he claims- is intended "to emphasize that when people disagree about constitutional interpretation, they disagree, in reality, about what might make the constitutional order better or worse" (ibid, 8).

 

Immediately after offering this preliminary answer, Sunstein accounts for two possible replies. First: "Who decides what makes the constitutional order better or worse?" He responds: "Anyone trying to choose a theory of interpretation. Judges; legislators; presidents; you; me; us... That is all there is. There is no one else" (ibid. 9). The second challenge concerns the fundamental question of how to determine what makes the constitutional order "better or worse." Sunstein devotes almost the entire remainder of this work to this question. In the following section, I will delve into the answer offered by Barack Obama’s former advisor.

 

Reflective equilibrium and "fixed points"

 

According to Sunstein, judges ("and others”) should determine which interpretive theory to adopt through "a kind of reflective equilibrium," such as that proposed by John Rawls in his A Theory of Justice. Rawls' idea of "reflective equilibrium" involved shaping "moral judgments" (in Rawls' case, the "principles" of his "theory of justice") out of a series of deeply held intuitions and convictions - the "fixed points" Sunstein speaks of here. Ideas, for example, such as the one that says that torturing a child is wrong or that slavery is unacceptable. From those “fixed points” that we can consider as "morally sound" (widely held and accepted by a vast majority of people), the aim is to shape a general theory (a theory of justice, in the case of Rawls; a theory of interpretation, in the case of Sunstein). The idea is: we first choose certain "fixed points" that define our community’s legal practice and then, and from there, we select, through a process of “reflective equilibrium”, the interpretive theory that will allow us to fit best, and make consistent, those "fixed points".

 

In this book, Sunstein not only invites us to think about what the "fixed points" of American law are, but he also offers us, in a very open way (coming “out of the closet”, he says), a relatively complete list of "fixed points" –“fixed points” that, in his personal opinion, are part of the "solid rock" of his country's law. The most obvious and important of this “fixed points” is the Supreme Court decision in Brown v. Board of Education. I am referring, obviously, to the Court’s decision against racial segregation in schools, through which the tribunal contributed to ending the unfortunate era marked by the principle of "separate but equal".[2] Along with that paradigmatic decision, Sunstein adds other "fixed points" of U.S. law, which include the following: 

 

*decisions that invalidated discrimination based on gender.

*a powerful protection for political speech.

*the right of married couples to use contraceptives (Griswold v. Connecticut).

*the discretion given to administrative agencies.

*The idea that gerrymandering can be judicially reviewed and limited.

*regulation of the use of money in politics (controls on campaign spending, etc.).

*The idea that political measures, such as maximum work hours or minimum wages, are not constitutionally prohibited (contra-Lochner), etc.

 

Which interpretative theories should be discard?

 

For Sunstein, once we have a series of "fixed points" on which to rely, we are then in a position to determine, through a process of "reflective equilibrium," which interpretive theories do their job well, and which ones do not.

 

Sunstein begins this evaluative endeavor by scrutinizing two enormously influential interpretative theories, which are, in principle, in tension with each other: a conservative theory, namely originalism, which invites us to "look back" (to the origins of the law) when interpreting the Constitution; and an alternative one, which suggests a principle of substantial (democratic) deference from judges to legislators -what we will call, for now, "Thayerism" (the deferential interpretative approach advanced by James Thayer).[3] Sunstein proposes to "test" those two influential theories (but also the favored method of "reflective equilibrium") by asking the following question: Are those interpretative theories able to properly accommodate the favored "fixed points”?

 

For Sunstein, originalism is unable to accommodate cases such as Brown v. Board of Education; or the idea that the Constitution does not prohibit maximum hours or minimum wages; or the principle according to which political speech deserves special protection. This is because originalism, at least in its standard version, considers that the meaning of the Constitution was "fixed" at the (original) time it was drafted, where, for example, a robust notion of private property prevailed (a robust notion that were incompatible with the advances imposed by the New Deal). This was a time, in addition, where constitutionalism seemed to coexist with situations of serious racial segregation (the foundations of the principle of "separate but equal" were laid there).

 

Interestingly, Sunstein also shows that his proposed method, namely “reflective equilibrium," not only suggests us to discard or resist conservative interpretative theories such as originalism, but also progressive ones, such as Thayerism. In fact, "Thayerism" - the "deferential" conception- would also be misplaced in the face of his proposed "fixed points". More precisely, this "progressive" position would be incapable of accommodating the same "fixed points" that originalism was unable to accommodate. For instance, "Thayerism" could not account for Brown given that the principle of "separate but equal" cannot be simply presented as "manifestly wrong" or unquestionably contrary to the Constitution (indeed, that is why such a principle enshrining racism survived for decades, and withstood strict "judicial scrutiny"). Similarly, it would be also unclear why we should consider to be "manifestly inconsistent with the Constitution" a rule that did not ensure a special protection to political speech.

 

According to Sunstein, those results (the rejection of both originalism and Thayerism) speaks well of the proposed method of “reflective equilibrium”. The suggested method -one could claim- does not appear as a mere rationalization of one’s preferences: it is a proposal that induces us to preserve or discard positions based on criteria that are independent of one's ideological preferences. In any case, we still need to go one step further. The question that we now face is: can we say something else, regarding which interpretative theory to adopt (rather than discard)?

 

What interpretative theory should we adopt?

 

In order to answer this last and decisive question, Cass Sunstein resorts to two “additional fixed points": the deliberative conception of democracy and the anti-caste principle. These are -in his view- two abstract "fixed points", which come from theory, but that are at the same time related to the very foundations of (American) constitutionalism. Moreover, these are two ideas that are closely connected to the author's theoretical trajectory: Sunstein discussed and defended both views in many of his early works, 30 years ago (see, for example, Sunstein, 1993; Sunstein, 1994). 

 

On the idea of "deliberative democracy," Sunstein argues that it is a notion that "philosophers, political scientists, historians, and academic lawyers" have elaborated and recognized as closely linked to the more profound tradition of American constitutional law (Sunstein, 2023, p. 162). According to Sunstein, such a notion "plays a high premium on reflection and reason-giving" within an institutional framework where voters have enormous (ultimate) control over the most important public issues, and where majority rule exists but "is not enough." The results, in a deliberative democracy, "must…be justified by reasons" (see, also, Sunstein 1984). According to the author, it is his commitment to deliberative democracy that in the end explains many of the propositions presented above as his "fixed points": the solid legal protection he advises for political discourse; his support for basic New Deal measures; his defense of initiatives that restrict or regulate the use of money in politics; his opposition to political gerrymandering, etc.

 

On the anti-caste principle, Sunstein tells us that it is a principle that "forbids the creation of second-class citizenship, and which informs existing constitutional law concerning equality, particularly in the domain of discrimination based on race, sex, and sexual orientation" (ibid., 163). Moreover, it is a vision -he claims- linked to the republican political philosophy of the "founding era" - a principle that Justice Harlan took up and summarized in his famous vote in Plessy v. Ferguson when he proclaimed "There is no caste here" (ibid.). According to Sunstein, the anti-caste principle is the one that appears behind his defense of "fixed points" such as Brown; or the one that leads him to uphold the invalidation of gender discriminatory laws; and also the one that allows him to support affirmative action policies; etc.[4]  

 

With the presentation of these two additional "fixed points", we would approach to the end of Sunstein’s proposed exploration in the area of constitutional interpretation. At this point -he could claim- we know the diversity of existing interpretive theories; we know that all of them can be, in principle, defended; we also know that none of those theories is, in itself, correct. And, at the same time -he could add- we have learned that there is a method (“reflective equilibrium”) that helps us navigate between these differences, and distinguish between better and worse interpretative theories (theories more or less capable of "making the law better"). That proposed method would require us to recognize the "fixed points" of the law of our country, and then rank the different theories according to their ability to "accommodate" those "fixed points." This -he would conclude- can be done with the additional help of two "additional fixed points", of a theoretical nature, but anchored in the country's legal tradition: deliberative democracy and the anti-caste principle. Sunstein does not go beyond that point. He admits it openly: “You might me disappointed to hear that my goal is not to answer ^[ the question about the best approach to constitutional interpretation is^]” (Sunstein 2023, p. 16). What he tried to do through the book is to “understand what those who disagree about theories of interpretation are actually disagreeing about, and offering an account of how to choose among competing theories” (ibid.). That would be it: the end of the journey.

 

………………………………………………………………………………………….

 

Back to the sources: How to interpret the Constitution, according to Cass Sunstein (Part II)

 

Some critical notes

 

In the first part of this paper, I described some of the central features of Cass Sunstein's new book, How to interpret the Constitution. In that initial part, I referred to the different interpretative theories presented by Sunstein in his book, and also to the method he proposed for selecting a theory of constitutional interpretation from among them. The method in question was the Rawlsian "reflective equilibrium", built on the basis of certain "fixed points" or paradigmatic judicial cases (say, in the case of American law, judicial decisions such as Brown or Griswold), and also with the help of other theoretical "fixed points" (in his proposal, deliberative democracy and the "anti-caste principle"). Having completed that descriptive introduction, I will now present the second part of my analysis, which will be of a more evaluative and critical nature. I will first make two brief introductory remarks, and then move to a more substantive examination of Sunstein’s new work.

 

I begin with a minor reference to the place of this book within Sunstein's vast oeuvre. I want to call the attention to the fact that book was published in August 2023 (i.e., three months before the date I am writing this comment), and also that the bookselling platforms already warn us that the author has published or confirmed the publication date of (not one or two, but) nine other books (six of which would be novel, and not the mere translation or expansion of previous works). This little note is not merely anecdotal but symptomatic of a circumstance that, for many, has distanced us somewhat from Sunstein's work. I am referring to the author’s rather excessive disposition to produce new books, which usually (and inevitably) comes hand in hand with the publication of very unpolished works, or texts that repeat the same ideas, although through new examples. Undoubtedly, Sunstein is an author who, after decades, continues to be at the forefront of contemporary law: he has already contributed to our common knowledge through many new and provocative ideas -ideas that have helped us to progress in the study and critical reflection about the law. The problem is that this lucid and innovative work has been losing attractiveness and thickness over the years.  

 

On the other hand, and now in favor of this particular new book, I would say that Sunstein’s “return to the sources” is interesting, because it allows us to re-encounter the "old Sunstein", who had made excellent contributions to law. That “old Sunstein” was the one who produced exciting papers like "Beyond the Republican Revival" or highly illuminating books like After the Rights Revolution or The Partial Constitution. Sunstein was, at that time, a progressive democrat who favored the egalitarian philosophy of John Rawls and defended Ronald Dworkin’s legal philosophy -theories that he would later set aside, perhaps too quickly. Sunstein's early works were supported by a broad-based and attractive conception, whose parts were mutually reinforcing. That conception included a republican reading of legal history (based on a controversial but exciting reading of the works of James Madison and Thomas Jefferson), and a deliberative conception of democracy (like the one advanced by Jurgen Habermas or Jon Elster).

 

On a more substantive level, I will first mention that the book does a good job regarding one of its central proposals, namely introducing the problem of constitutional interpretation and critically examining the main existing interpretative theories. To be clear, Sunstein offers a succinct rather than meticulous examination of those theories, but this is because his work is mainly directed at people unfamiliar with the subject. In any case, the book is didactic, and his approach to the subject may be considered to be well-balanced and well-grounded (although some critics said that the task Sunstein undertakes, precisely on this point, fails crucially).[5]  

 

In contrast to the above, I think that Sunstein’s theoretical approach, in this book, is controversial and difficult to sustain. Once again, my general impression is that, unfortunately, Sunstein throws his theory into the public forum too soon. In that way, he leaves it at the mercy of severe and largely avoidable criticisms. More specifically, I believe that the main analytical tools that he proposes - the "reflective equilibrium," the "fixed points," the supporting theories (deliberative democracy, the anti-caste principle) - are hastily and sloppily presented, which makes his whole theoretical apparatus fragile.

 

Let me begin by referring to the "supporting theories" (this is to say, to the last two "fixed points" presented by the author), namely deliberative democracy and the anti-caste principle. As I understand it, Sunstein's defense of both issues is in need of a more careful and robust support. Given the central role that such ideas play in sustaining his position, one would have expected a less superficial and more detailed treatment of those issues. Sunstein admits this deficiency in the last pages of his book. He makes it clear, then, that he is "perfectly aware" that these two ideas introduced at the end of his work (although very present in his initial studies) would require much more development. By way of apology, he mentions that his purpose was to "point in the direction of such ideas," and to "the centrality" that such conceptions have regarding "the particular approach to constitutional law" favored in his book (ibid., 164). We can take these clarifications for good, of course, but the truth is that recognizing or being fully aware of the problems that affect a proposition does not strengthen it, nor make it more rigorous: the deficit remains, and it is a serious deficit.

 

Just to illustrate my point: one of the main ways in which Sunstein tries to support the relevance of resorting to those ideas (deliberative democracy and the anti-caste principle), is by showing the link that would exist between both conceptions and the roots of American law. However, the arguments that he presents in this respect are weak and not persuasive: Sunstein pretends that we take, as generally accepted, too controversial considerations. Think, for example, about the proposition that "the founding fathers" adhered to a deliberative understanding of democracy (which would be contradicted by the more common assumption that they assumed a "pluralist" or polyarchic conception of democracy). Alternatively, think about his claim regarding the presence of a strong and egalitarian version of republicanism, during the founding years (which would be another highly controversial claim, if we consider that the majority of those founding fathers were, just to begin, slave-owners).[6] In sum, such empirical claims are highly controversial. The fact is that Sunstein's interpretive approach ends up being based on very controversial assumptions, which should not be presented as if they were not. Much less, if what he intends to do is present such principles as "fixed points", widely shared by all members of the community (I will come back to this last issue below).

 

Let me add a further note on the character of those two ideas or principles (deliberative democracy, the anti-caste principle) as "fixed points" of law. I begin by recalling the following: when presenting his vision on the "fixed points" of law, Sunstein mentions certain judicial decisions (such as Brown or Griswold) that all or almost all of us tend to recognize as benchmarks of American law. Fine. Now, it is something very different to say, then, that a theory like deliberative democracy, or a principle like the anti-caste principle, are also "fixed points" of law. This seems strange.

 

I claim that the move is strange, first, in relation to the object of that reflection. The question is: is it appropriate to examine abstract principles (such as “deliberative democracy” or “the anti-caste principle”), through the same analytical tools (the "reflective equilibrium," the "fixed points") that we employ to evaluate the status of well-known and well-established legal decisions? It does not seem so. We might for instance say that, after long decades, we have socially converged in the endorsement of certain particular judicial decisions (Brown). However, it does not make sense to say the same about a theory of deliberative democracy or a particular reading of equality. Regarding those issues, it is difficult to recognize a collective "point of convergence". This, among other things, because we reflect less, collectively, about them (these are issues that are not part of our public conversation); but also, because the levels of disagreement we show on such matters seem much higher. The problem is, as we shall see, that Sunstein presents his approach, rigorously, in one form, but also in the opposite form, or open to multiple exceptions, in such a way that his vision ends up being diffuse and elusive. [7] 

 

Sunstein's approach in this respect is also strange at a different level: the one related to the subject of this reasoning. The question is: are we talking about agreements that all or the vast majority of the members of our legal community seem to have about the law (i.e., we all think that any reading about the law must be able to recognize the value of a decision like Brown); or are we referring, instead, to individual legal criteria, about which we are personally persuaded (i.e., because we are individually convinced about the value of the theory of deliberative democracy)?

 

Between the Theory of Justice and the “chain novel”

 

This last point helps us to address another question, more directly related to the method of "reflective equilibrium" -I mean, “reflective equilibrium” according to the version sponsored at the time by John Rawls. In his reference to the matter, Rawls did not appeal to -say- very intense personal preferences or convictions derived from one's philosophy or ideology. He referred to convictions fundamentally shared by all members of our community. For that reason, in his references to the subject, Rawls alluded to examples such as those of religious intolerance and racial discrimination. What I mean to say is that Rawls referred to issues on which the vast majority of society seemed to agree fundamentally. In his words (which were written in the first-person plural):

 

We are confident that religious intolerance and racial discrimination are unjust. We have scrutinized these things and have reached what we believe is an impartial judgment not likely to be distorted by excessive attention to our interests. These convictions are provisional fixed points which we presume any conception of justice must fit (Rawls, 1971, pp. 19-20).

 

Sunstein is well aware of this view (chapter 4). However, in the ecumenical and conciliatory approach that he develops in the book, Sunstein suggests a different view on the matter.  He presents the matter as if each person selected his or her “fixed points” and then engaged in a process of “reflective equilibrium”. He examines these issues as if there were no conclusive reasons to say that such a conception, such a theory, or such a "fixed point" were the correct one (for all). For that motive, Sunstein may claim -after he presented his “own fixed points”: "these propositions are correct...These are my fixed points; they are part of my reflective equilibrium" (Sunstein, 2023, p. 161). For him, “each chooser -each one of us- must make a judgment about what those fixed points are, about exactly how fixed they are, and about whether one or another approach would endanger them” (ibid., p. 129). Now: this is not how we usually understand the idea of "reflective equilibrium," much less is this the way Rawls thought about the question. I insist: we are not dealing with issues fundamentally related to our personal preferences or theoretical convictions (where everyone has his views and where everyone's views, in principle, are equally plausible or reasonable). More specifically: when Rawls says that “we are confident that religious intolerance and racial discrimination are unjust” he is not thinking about those problems as a matter of “choice”. On the contrary, he is thinking of (something like) the collective recognition or acknowledgement of a problem that is common to all -a problem that is evident to all. The problem at stake is of such an entity that everyone can confidently point to it as a serious problem. In other words, it is not a debatable issue, about which, as Sunstein suggests, we have to "anticipate and offer convincing responses to counterarguments" (Sunstein 2023, p. 128). In fact, if these were highly debatable questions (if we had to make such intellectual efforts in order to persuade others about the importance of such problems), we would not be talking of "fixed points" in Rawls's terms.

 

I have said something about Sunstein's approach to "fixed points" and its relation to Rawls's theory of justice, and now I want to say something about that theoretical approach and Ronald Dworkin’s theory of interpretation. I am thinking, in particular, of the interpretive theory presented by Dworkin in terms of the "chain novel." As we know, Dworkin’s “chain-novel-approach” to legal interpretation suggest that the task before the interpreter of the law is similar to that of the one who participates in the writing of a "chain novel" (Dworkin, 1986). To summarize Dworkin’s view in a nutshell: to do his or her job correctly, the participant in the "chain novel" must "look back," read what has already been written by previous participants, make sense of what has been written by all, and then determine what the "best possible continuation" of that collective novel is- a continuation that is capable of "accommodating" in the best way all that has already been written. In law, the (interpretative) task would (should) demand a similar intellectual exercise: the judge or interpreter looks back and seeks to make sense of all the written law to then determine what is the best possible continuation of that law, in the specific case under examination (a decision that “fits” with the past legal history). His decision, in that specific case, must "fit" well, in Dworkin's terms, with what has been decided so far by the legal community, read in "its best light." Or, to put it another way, that decision must fit with what Sunstein calls "fixed points" (it must make sense of Brown, Griswold, the rejection of Lochner, etc.).  The point is, so far, that in spite of the differences that separate the two authors (and perhaps despite Sunstein's own intentions), there are important points of coincidence between Dworkin’ and Sunstein’s work in the area. Among other coincidences, i) both authors are interested in the constructive interpretation of social practices; ii) both relate constitutional interpretation to an analysis of the community’s legal history; iii) both pay special attention to paradigmatic judicial decisions; and iv) both seek to reconstruct that legal history through a normatively charged approach.

 

Now, I was interested in drawing attention to the (non-expected) coincidences that appear between the two authors but, above all, in highlighting the crucial differences that exist between their approaches. First of all, while Sunstein seeks to derive, from his proposed "fixed points," the choice of an "interpretative theory," Dworkin seeks to derive, simply, the resolution of a concrete case. For example, faced with a case in which an affirmative action law is challenged, Dworkin might say that it is appropriate to uphold - rather than invalidate - that law if it can be demonstrated that this particular decision – say, the defense of a certain affirmative action measure - makes it possible to give an appropriate account of Brown and a whole saga of cases were racial equality, the dignity of the person, and so on, were sustained. My impression is that the enterprise undertaken by Dworkin (inferring the resolution of a case, from a well-established legal tradition) is much more natural and reasonable than that proposed by Sunstein (deducing the choice of an interpretive theory, from certain "fixed points").

 

The task proposed by Dworkin is more "natural" and reasonable, because it relates well to practices that most members of the legal community engage in, in one way or another. In fact -I submit- we usually think about the decision of a particular case, taking into account (in a more or less sophisticated way) legal decisions that have been made in the past, in similar cases or circumstances. We may or may not adhere to this approach (take it as our preferred approach) but it refers us to a task that in no way seems strange to us. Sunstein's proposal, on the other hand, appears as less "natural", if not directly counter-intuitive. For him, “the search for reflective equilibrium” plays a central role in constitutional law. “In fact” -he claims- “it is the only game in town”: “we cannot pull a theory of the sky, insist that it must be right, and declare victory” (Sunstein 2023, p. 11). But here, again, Sunstein seems to be mixing things up. We can affirm with him that, somehow, some kind of "reflexive equilibrium" plays "a central role in constitutional law". But that does not lead us to conclude, by any means, that this exercise of "reflective equilibrium" is the one we set in motion "in deciding how to interpret the Constitution" (or, even more strongly, when “choosing” the best interpretative theory). Those are two completely different claims. In fact, he still needs to convince us that we tend to look to past paradigmatic decisions in order to “choose” an interpretative theory. In other words, this does not seem to be the way in which we usually come to “defend” a certain theory of constitutional interpretation. The question is: Do we first “choose” or define, say, certain paradigmatic judicial decisions, in order to then “choose” an interpretative theory? Or is the exercise at stake rather the reverse? Most probably, the interpretative theory that Sunstein claims to find "at the end of the road" was already present from the very beginning. So, Sunstein’s proposal in this regard seems to be not only unusual but also unreasonable if not simply wrong.

 

In fact, Dworkin could rightly point out that the theory now in question (the one that Sunstein seeks to derive from history) pre-existed the proposed exercise. We assume a theory of constitutional interpretation that first tells us to pay attention to certain "fixed points"; then helps us to "choose" or recognize some "fixed points" from our long legal history (say, take up Brown, discard Lochner); and then induces us to organize them in a certain way, or to derive from them other conclusions. In sum: the theory is the one that marks all the way from the beginning, not the one we choose or find at the end of the road.

 

Through this brief review, I wanted to celebrate the publication of Cass Sunstein's How to Interpret the Constitution. This is a book that - on a personal level - reconciles me with an author that I have followed and admired during decades. Beyond the differences noted, I applaud what appears to be a "return to the sources" on the part of Sunstein. And I do so with the hope of encountering new works by the author, reflecting on constitutional law from a perspective committed to democracy, equality and social justice.

 

BIBLIOGRAFIA

 

Breyer, S. (2011), Making Our Democracy Work, New York: Vintage.

Dworkin, R. (1977), Taking Rights Seriously, Cambridge, Harvard University Press.

Dworkin, R. (1986), Law’s Empire, Cambridge: Harvard University Press.

Elster, J. (1986) “The Market and the Forum”, en J. Elster & A. Hylland (eds.), Foundations of social choice theory, Cambridge, Cambridge University Press, 1986, 103 132.

Ely, J. (1980), Democracy and Distrust, Cambridge, Harvard University Press.

Habermas, J. (1988), Between Facts and Norms, Cambridge, The MIT Press.

Holloway, C. (2024), “The Great Constitutional Divide”, The National Review. Magazine,   https://www.nationalreview.com/magazine/2024/01/the-great-constitutional-divide/

Rawls, J. (1971), A Theory of Justice, Cambridge: Harvard University Press.

Sunstein, C. (1984) "Naked Preferences and the Constitution," 84 Columbia Law Review 1689.

Sunstein, C. (1988) “Beyond the Republican Revival”, 97 Yale L. J. 1539.

Sunstein, C. (1990), After the Rights Revolution, Cambridge: Harvard University Press.

Sunstein, C. (1993), The Partial Constitution, Cambridge, Harvard University Press.

Sunstein, C. (1994), “The Anticaste Principle,” Mich. L. Rev. 92, 2410.

Sunstein, C. (1999) One case at a time. Judicial minimalism on the Supreme Court, Cambridge, Harvard U.P.

Sunstein, C. (2015), “There is Nothing that Interpretation Just Is,” Constitutional Commentary 30.

Sunstein, C. (2023), How to interpret the Constitution, Princeton: Princeton University Press.

Sunstein, C. & Vermeule, A. “Interpretation and Institutions,” 101 Mich. L. Rev. 885 (2003).

Thaler, R. & Sunstein, C. (2009), Nudge: Improving Decisions About Health, Wealth, and Happiness, London: Penguin Books.

Thayer, J. (1893), “The Origin and Scope of the American Doctrine of Constitutional Law, Harvard Law Review, Vol. 7, No. 3 (Oct. 25), pp. 129-156.

 

Roberto Gargarella. Doctor in Law (University of Buenos Aires); Jurisprudence Doctor (University of Chicago). CONICET (Argentina)/ Univ. Pompeu Fabra (Spain)

 

 

 

 

 

 

 

 

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[1] His introduction in this regards seems to be heavily based on an article that he published with Adrian Vermeule, namely  “Interpretation and Institutions” ( https://repository.law.umich.edu/mlr/vol101/iss4/2 ) while the views that he develops in chapter 2 are based on his 2005 article “There is Nothing that Interpretation Just Is”.

[2] The “separate but equals” principle established that, as long as the facilities provided to each race were equal, local governments could require that schools, transportation and other facilities be segregated by race

[3] As is well known, the “Thayerist” doctrine arises from a famous work published by the legal theorist James Brayer Thayer, in 1893, where the jurist maintained that judicial control can be admitted exclusively in a few cases: in the face of a “clear mistake”, this is to say when the failure of the norm "is so clear that it is not open to rational question." (Thayer 1993).

[4] Let me mention, albeit briefly, a third theoretical commitment that appears mentioned in the book: the proceduralist reading of constitutional law. This statement is surprising, in part, given the criticisms that Sunstein used to direct against this approach (i.e., Sunstein 1993). Indeed, and from the beginning of his new work, Sunstein proclaims to be "in strong agreement with the works of John Hart Ely and Stephen Breyer," particularly because of the emphasis they place on the need for a strong role for judges in the protection of the preconditions of democratic self-government (ibid., 17).

[5] In his review of Sunstein’s book, for example, Carson Holloway maintains that Sunstein’s analysis “fails in its main purposes”, and also that “his denials are unconvincing”, particularly in what regards the merits of originalist interpretative theories (Holloway 2024).

[6] However, and partially denying his immediately previous statements, Sunstein recognizes that the “republicanism” that he links to the “founding era” was “patently violated until the Civil War Amendments” Sunstein 2023, 163.

[7] As usual, Sunstein is not blind to this problem, but he instead deals with it without much rigor. He emphatically claims, for instance: “It is important to say that fixed point about constitutional law are not…fixed points about morality and justice” (Sunstein 2023, p. 13). But, in the very same phrase he clarifies that what he actually meant to say is that they “are not simply, fixed points about morality and justice” (ibid., italics added). To add more complexity (and ambiguity) to the problem, Sunstein admits that “our fixed points operate at multiple levels of generality” (ibid.), and also that “they are not only about specific cases”, because they may be “abstract”. In this way, everything seems to be possible.