THE LAW MAY BE A FUNDAMENT, BUT CONSTITUTIONALISM IS FUNDAMENTAL:

Judging the Judges: Liberals need a new constitutional vision to guide their decisions. Cass Sunstein may have it: a review of Radicals in Robes by Cass Sunstein (Stephen Pomper, September 2005, Washington Monthly)

Part of Sunstein's vision is to divide the constitutional world into four interpretive camps. On the right side of the spectrum are proponents of “originalism” like Justices Thomas and Scalia, who believe that the Constitution should be interpreted today as it was originally understood by its ratifiers (and whom Sunstein calls “fundamentalists” because of their emphasis on the Constitution's historical foundations). Over on the left side of the Sunstein spectrum are the “perfectionists,” who see the open-ended language of the Constitution as an invitation to “perfect” the law by fashioning new types of rights that they think are consistent with appropriate constitutional values. Liberal jurist Earl Warren was a perfectionist, and Roe v. Wade was a perfectionist decision. And in the middle of the spectrum are two groups that include both liberals and conservatives—the “majoritarians” and the “minimalists.”

Majoritarians believe that the elected branches of the government (Congress and the White House) should interpret portions of the Constitutions that are ambiguous, and the courts should stand aside; Oliver Wendell Holmes was a majoritarian, but there are none on the Court today. Minimalists also try to cabin the role of the courts in constitutional matters, but they do so differently—by emphasizing the importance of following precedent and of reaching narrow, fact-specific rulings that give future courts room to reach their own conclusions based on changing circumstances. Justice O'Connor and Justice Ruth Bader Ginsburg are each minimalists; so is Cass Sunstein.

Sunstein's first order of business is to take originalism down a peg, by reminding us that although it is the theory of the moment with the ascendant legal right, it is not Holy Writ and has never actually been the dominant school of constitutional interpretation at the Supreme Court. To be sure, originalism has considerable theoretical strengths: It is straightforward; it reduces judicial discretion by focusing on constitutional text and history (which leaves more room for decision making by the democratically elected branches of government); and its insistence that the ratifiers' understanding should govern judicial decision making helps to put judicial decision making on a more democratic footing since ratification was more or less a democratic act. There are problems, however, with many of originalism's claims to the theoretical high ground. It is not clear, for example, that ratification can be fairly characterized as a democratic act since the ratifiers hardly included a representative sampling of women and minorities. It is also unclear whether the ratifiers themselves intended future courts to follow their understanding of the Constitution. And in any case, it is problematic to suggest that a 21st-century judge can meaningfully think her way into the 200-year-old mindset of a ratifier in order to figure out how he would have approached a modern constitutional problem. (How would a Colonial-era ratifier answer questions about the constitutionality of wiretapping under the Fourth Amendment? Is that even a meaningful question?)

Sunstein's main objections to originalism don't have to do with its theoretical vulnerabilities, however. His principal objections are about the results that it would produce.

The Left never betrays its muddleheadedness more clearly than when it imagines the Constitution's intents to be democratic, though thinking it difficult today to apply the simple republican scheme it lays out is a good demonstration also, and one need look no further than their favorite Founder to refute the third point:

On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable
one in which it was passed.
-- Thomas Jefferson to Justice William Johnson, 1823

Posted by Orrin Judd at September 6, 2005 8:13 PM