The Constitution of Reasons
30 Pages Posted: 17 Jun 2011
Date Written: 1994
Cass Sunstein's book, The Partial Constitution, brings together a number of his constitutional law essays from the last ten years. During that time, Sunstein has argued, powerfully, for the unconstitutionality of regulatory constraints on access to abortion; for the constitutionality of and the need for regulation of violent pornography; for the constitutionality of limits on both campaign spending and congressional control over public broadcasting; for the deep consistency, conventional wisdom to the contrary notwithstanding, of the Court's repudiation of Lochner in 1937 with its 1974 decision in Roe v. Wade; for the view that we should accord far less deference than we do to presently held preferences and presently conceived "interests" in our public or collective decisionmaking; and for the view that at the heart of our constitutional traditions lies a commitment to deliberative democracy which, if sufficiently attended, could generate many more specific constitutional entailments, including but not limited to those put forth above. This book represents, and by so doing strengthens, these arguments and a good number of others as well. This book is well worth reading and rereading if for no other reason than to get a sense of the power of traditional legal arguments when put to often quite nontraditional political ends.
What Sunstein has tried to do in this book is to weave his arguments on particular issues into a coherent whole, largely by identifying and then developing the common philosophical premises of the various positions he has taken over the last ten years. He then argues that the conception of the Constitution that emerges from a careful elaboration of those premises is both truer to our history and more just than the competing visions of the Constitution that both constitutional theorists and the Court have developed in the modem, post-New Deal era. Importantly, though, Sunstein does not simply present "his" interpretation of the Constitution as one possible interpretation among any number. Rather, his starting premises, he clearly believes, are correct and widely held to be so. If that assumption is right, and if we share with him a commitment to rational forms of argument, then the Constitution he envisions is not just "his" interpretation; instead, it is in an important sense "our" Constitution. It follows that the conclusions he reaches on substantive constitutional positions, including some he calls "surprising," should command general assent. I think this larger, overarching project is not in the end successful, but I also think it is a tremendously worthy endeavor. It is a project full of promise and hope: the Constitution here envisioned is a just Constitution which could indeed service the ends of justice in contemporary life. Consequently, when the project fails, the failures are tremendously disappointing, and the reasons for those failures important.
In this review, I will first describe the deep structure of Sunstein's Constitution by outlining what I take to be the major premises elaborated in his book and then criticizing sequentially each of the premises I take to be the basic building blocks of Sunstein's "partial Constitution." All of Sunstein's basic premises, I think, are more problematic than Sunstein believes them to be. By identifying the problems I hope to suggest that the flaws, although deep, are curable, and that whether or not that is the case, the constitutional goals Sunstein puts forward in this book are goals we should applaud.
Keywords: Book review, Cass Sunstein, The Partial Constitution, private versus state action, government neutrality, equal protection, New Deal for speech
JEL Classification: K19
Suggested Citation: Suggested Citation