Does It Take a Theory? Originalism, Active Liberty and Minimalism
34 Pages Posted: 27 Jan 2006
This review essay examines two recent books, "Active Liberty" by Justice Stephen Breyer, and "Radicals In Robes" by Professor Cass Sunstein, and it assesses them in relation to their main target - Justice Scalia and his brand of originalism. Both books are self-consciously designed to influence public debate over how best to interpret the Constitution, a debate that originalists have dominated for the last fifteen years or so.
There is much to admire in these books. Both are engaging and at times quite provocative. Justice Breyer's book is candid and smart. He offers no pat answers or simplified formula for deciding cases, which is to his credit and speaks well of his intellectual honesty. Professor Sunstein's book, in turn, is quite effective in poking holes in the form of originalism he dubs "fundamentalism" and in highlighting the numerous instances where "fundamentalists" like Justices Scalia and Thomas seem to deviate from their avowed methodology. For those who have been waiting for a public response from the left, these books are a sight for sore eyes, if for no other reason than they constitute an attempt to push back at the level of ideas.
And yet the books fall a bit flat, at least in the eyes of this (sympathetic) reader. The basic problem is suggested by the title of this review: neither Justice Breyer nor Professor Sunstein offers and justifies a theory of constitutional interpretation. Justice Breyer comes closer than Professor Sunstein. But in my view, neither "Active Liberty" nor "Radicals in Robes" explains and justifies, in terms plain enough to influence public debate, how judges ought to decide cases. In their haste to distance themselves from originalism, moreover, both Justice Breyer and Sunstein seem to distance themselves from the text of the constitution. These seem to me fatal missteps in their effort to persuade a general audience to reject originalism and embrace an alternative.
In addition, both books only partially succeed in their critique of originalism. Breyer and Sunstein focus on one form of originalism, which entails looking to the narrowly conceived expectations of the framers. While this may indeed be the way originalism is occasionally practiced by Scalia and others, it is not the only version of originalism conceivable. Nor is it necessarily the one most faithful to the text of the Constitution, which, at the end of the day, is the point of originalism. What is ironic about both books is that each contains seeds of an alternative, originalist-oriented approach. But neither Breyer nor Sunstein explores whether that alternative might be superior both to the originalism they criticize and the approaches they advocate. Indeed, absent a compelling alternative theory, one wonders if Breyer and Sunstein should have sought to mend rather than end originalism.
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