The late Ronald Dworkin, the foremost American legal philosopher and one of the leading figures in moral and political philosophy of the last century, opened his April 30, 2009 review, in the New York Review, of Cass Sunstein’s book entitled A Constitution of Many Minds (2009) with the following words: “Professor Cass Sunstein of the Harvard Law School, who is among the most prominent and influential American academic lawyers, appears on many lists of potential nominees to the Supreme Court, and it is therefore opportune that he has published a new book exploring constitutional philosophy.”[i]
While Cass Sunstein’s chances for a Supreme Court nomination waned when Justice Ruth Bader Ginsburg opted not to retire during Barack Obama’s presidency, they vanished when President Joe Biden nominated Ketanji Brown Jackson to replace Justice Stephen Breyer in 2022. Undaunted by that fact, Professor Sunstein has published a new book laying out his philosophy of constitutional interpretation once again.
The Supreme Court took a marked conservative turn following Donald Trump’s presidency, during which he appointed three justices—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—the most appointments by any president since Ronald Reagan. Cass Sunstein acknowledges this shift in the introduction to his recent book, How to Interpret the Constitution (2023), noting that the Court’s majority now aligns, perhaps uneasily, with the prevailing views of the contemporary Republican Party (p. 7).
He critiques conservatives who yearn for a return to the pre-New Deal “Constitution in Exile” and laments the erosion of liberal constitutional jurisprudence, particularly regarding abortion, affirmative action, privacy, government lawsuits, and the administrative state. He also criticizes the expansion of individual rights regarding firearms, religious freedom, commercial advertising, campaign expenditures, and property rights. (pp. 6-7)
Sunstein predicts significant changes in rights and institutions over the next two decades and uses this as the linchpin for his critique of existing constitutional interpretation theories and for launching his own choice theory of constitutional interpretation—assessing what enhances or hampers the constitutional order’s quality. (p.7)
In this book, Sunstein pursues a dual objective: firstly, to provide a guide for understanding the diverse debates surrounding the interpretation of the United States Constitution and their motivations. He aims to shed light on the nature of legitimate disagreements, irrespective of one’s ultimate stance. (p8) Secondly, he seeks to tackle the question of how one should select a theory of constitutional interpretation. Sunstein’s answer is unequivocal: judges and others should choose the theory “that would make the American constitutional order better than worse.” (p.8)
Drawing not only inspiration, but also method from the venerated American political philosopher, John Rawls, Sunstein deploys the concept of “reflective equilibrium”, which he places it at the forefront as the primary method by which judges and others can arrive at his favored constitutional interpretation theory. Within the realm of constitutional interpretation, finding this reflective equilibrium becomes paramount.
Sunstein next delves into what he refers to as the crux of his work in Chapter 4. Here, he immerses himself in the intricate process of selecting an interpretation theory and elucidates the points of contention among reasonable individuals. He asserts that the presence of fixed reference points, operating at varying levels of abstraction, holds paramount significance in determining an interpretation theory.
Sunstein argues that judges must employ a process of “reflective equilibrium” to choose a theory of constitutional interpretation. This process harmonizes judgments at different levels of generality, ensuring coherence. Sunstein underscores the importance of considering the consequences of interpretation theories on specific judgments, which serve as “provisional fixed points” aligned with fundamental constitutional principles and ideals. (Id)
He addresses the misconception that interpretation theory choice shouldn’t hinge on results, emphasizing that judges must prioritize the enhancement of the constitutional order. This involves evaluating ideals, processes, and institutions alongside specific case outcomes.
Sunstein again draws inspiration from Rawls’s idea of “provisional fixed points” in moral and political philosophy. Rawls suggests that individuals may hold firm judgments but should remain open to revision based on reasoned arguments.
Rawls underscores the connection between reflective equilibrium and foundational questions in constitutional law., with Sunstein explaining Rawls’s approach. Fixed points are provisional and may be revised if they conflict with principles. Reflective equilibrium involves aligning principles and judgments coherently, considering arguments at all levels of generality. (p.105)
Sunstein concludes that reaching reflective equilibrium can be challenging but is essential for ensuring a just and coherent constitutional interpretation. (p.106) He then delves into the concept of fixed points in constitutional law, emphasizing their significance. Fixed points encompass both abstract principles like the rule of law and specific judgments, creating a diverse landscape of beliefs among individuals. (p.110)
He highlights how certain fixed points, such as the rejection of racial segregation, profoundly affect the acceptability of interpretative theories. Decisions like Bolling v. Sharpe, extending the Equal Protection Clause to the federal government, pose challenges for originalist or textualist interpretations due to their moral underpinnings. (p.115)
Moreover, Sunstein underlines that the use of fixed points in selecting interpretative theories goes beyond constitutional sociology; fixed points are essential for decision-making in constitutional law. (p.116) Fixed points are not confined to past rulings but can extend to anticipated future constitutional developments, such as expanding notions of liberty and equality. (p.118)
Sunstein emphasizes that judges should consider their own fixed points, acknowledging that these can vary among individuals. It is crucial for judges to remain humble and open to the possibility that their fixed points might be idiosyncratic, with their legitimacy influenced by the legal culture and broader consensus. (p. 119)
The problem is that Sunstein undertakes an ambitious project within this slim volume. Three-quarters of the book focuses on critiquing other constitutional interpretation theories, arguing why they cannot produce a better constitutional order. However, he fails to address a fundamental issue: how to justify constitutional interpretation in light of democratic theory grounded in the Constitution itself. This raises a crucial question: how can such justification avoid what Alexander Bickel terms “the majoritarian difficulty” – the tension between judicial review and democratic principles?.
In his pursuit, Sunstein leaves a critical question unanswered: why should reflective equilibrium be considered the appropriate method? While he adheres to his “Incompletely Theorized Agreements”[ii] theory, aiming to avoid anchoring his theory in overarching ideals like legitimacy, the book doesn’t explicitly delve into this foundational aspect of constitutional theory. Furthermore, there’s a need for a more comprehensive exploration of the constraints judges must embrace to reach the “reflective equilibrium” that others would acknowledge as legitimate, even if not wholeheartedly subscribed to.
In the “For the Record” section under the Introduction, Sunstein touches on the value of deliberative democracy as a guidepost in constitutional interpretation. He emphasizes that constitutional interpretation should align closely with the goal of creating a deliberative democracy, which values reason-giving in the public domain and accountability to the people. However, while he aligns with John Hart Ely and Stephen Breyer regarding the need for a strong judicial role in protecting preconditions for democratic self-government, he falls short of defending his theory in terms of its democracy-reinforcing value. This omission is perplexing given that deliberative democracy is one of his two fixed points (along with the anti-caste principle) in the book’s final chapter. His reluctance to explore judicial review’s democracy-promoting value may stem from concerns about the counter-majoritarian difficulty and how democratic principles could potentially undermine his theory..
Democracy reinforcement is just one of the many approaches to constitutional interpretation that Sunstein considers alongside textualism, various strands of originalism, and non-originalist approaches. (pp.37-41) In Chapter 1, he provides a catalog of leading theories of constitutional interpretation and concludes that adopting any one theory has its drawbacks. Choosing one significantly shapes one’s approach to constitutional law, affecting a wide range of issues from affirmative action to voting rights and freedom of speech.
Sunstein claims that the absence of clear instruction in the Constitution leaves us with inevitable choices. He points out in Chapter 2 that no single approach to constitutional interpretation is mandatory, except perhaps textualism. Judges and lawyers have the freedom to select their interpretation theory, but this freedom is not without constraints. Each theory must demonstrate its capacity to improve, rather than undermine, the constitutional order. Sunstein’s theory is essentially utilitarian or consequentialist, continuing the concept of “Incompletely Theorized Agreements.”
Sunstein has expanded on his “Incompletely Theorized Agreements” theory contained in his Tanner Lectures in the 1994 Commentary published in the Harvard Law Review.[iii] It acknowledges the importance of ambitious theories in academia and complex deliberations but emphasizes caution when embracing high-level theories in adjudicative institutions. However, there’s no reference to this idea or these early works in the book, and the index doesn’t mention “incompletely theorized agreements.” His thoughts seem to have evolved from his earlier scholarship, including works like The Partial Constitution (1998) and A Constitution of Many Minds.
This evolution raises questions about the development of his constitutional theory and its relationship to his earlier ideas and influences. In A Constitution of Many Minds, Sunstein asks whether we should defer to collective wisdom about constitutional interpretation (“many minds”) on given issues. He discusses various interpretive approaches based on his many minds concept, grounded in Condorcet’s jury theorem. He explores three perspectives: traditionalism, populism, and cosmopolitanism. He finds support for his many minds claim in the jury theorem, which postulates that collective decisions often yield accurate outcomes.[iv]
Sunstein advocates a form of “Burkean minimalism,” utilizing traditional practices and precedents to decide cases narrowly. He highlights the limitations of relying on popular opinion due to the influence of elites, prejudices, or cascading effects. Sunstein also introduces the concept of “rational minimalism,” favoring a jurisprudence that balances traditional practices with the evolving awareness of society.[v]
In A Constitution of Many Minds, Sunstein, while supporting judicial restraint in some areas, leans towards a more expansive interpretation of certain rights, such as equal protection and due process, while cautioning against the constraints of traditionalism or populism in these domains. He suggests a nuanced approach that balances the wisdom of the past with the evolving understanding of contemporary society, pointing to the Supreme Court as the arbiter in guiding the Constitution’s evolution.
In Constitutional Personae[vi] (2015), Sunstein delineates four judicial roles adopted by U.S. Supreme Court Justices: the Hero, the Soldier, the Minimalist, and the Mute. He illustrates these personae through historical examples and their interactions with constitutional interpretation. (p.1) He suggests that these personae arise not from underlying reasons but from the methods of interpretation. He claims that the best method of interpretation should naturally align with the most suitable judicial persona, minimizing decision costs and errors, ultimately enhancing the constitutional system. (Chapter 2)
Sunstein examines the emergence of these personae and their alignment with methods of constitutional interpretation. He advocates for the minimalist approach, particularly Burkean minimalism, emphasizing respect for tradition to ensure stability in areas like separation of powers. However, he acknowledges the need for rationalist minimalism in areas like equal protection, valuing tradition only with sufficient reason. Sunstein underscores that these personas are not a panacea but play crucial roles in interpreting the Constitution. (Chapter 3)
The question is whether Sunstein’s new book represents another form of minimalism, now enhanced by Rawls’s reflective equilibrium concept as a method for achieving coherent justification – an approach absent from his earlier works. The book offers no answer.
Returning to the inevitability of choice, Sunstein underscores that, within the array of surveyed theories, “the only real question” is what makes our constitutional system the best it can be. (p.67) He emphasizes fidelity to authoritative texts, recognizing that interpretation can manifest in diverse forms within those defined boundaries. The choice of an interpretative approach, he asserts, should be based on its capacity to strengthen the constitutional system. Importantly, his conclusions do not inherently dismiss established approaches but provide the framework within which debates should unfold. (Chapter 2)
Sunstein emphasizes the need to defend these conclusions, as they challenge prevailing beliefs. When examining contested theories, it becomes evident that they must substantiate themselves by demonstrating their potential to enhance the constitutional order.
Regarding originalism, Sunstein acknowledges the traditional emphasis on authorial intentions but contends that this approach is not strictly dictated by the concept of interpretation. He clarifies that defining interpretation as a quest for authorial intentions represents a stipulation, not an intrinsic aspect of interpretation. While some contexts necessitate an examination of intentions when interpreting words, it is not a universal requirement, and other interpretative forms, such as discerning public meaning, remain conceivable. He further delves into the transition to original public meaning and underscores that debates within the originalist camp itself illustrate that interpretation does not inherently compel a focus on intentions or public meaning. The choice between these approaches remains a subject of reasonable disagreement.
Ultimately, Sunstein emphasizes that the paramount question in constitutional interpretation revolves not around whether to prioritize intentions or public meaning, but rather how to select an approach that optimally serves the constitutional system. This decision should be informed by an evaluation of which approach will bolster the constitutional order based on the specific circumstances and institutional capacities of a given society. The Constitution necessitates interpretation grounded in external justifications, and the suitability of an approach is determined by its potential to enhance the constitutional order.
Sunstein notes that over the last century, American law has encompassed a blend of textualism, democracy reinforcement, moral readings, common-law constitutionalism, and common-good constitutionalism. Originalism certainly makes appearances in Supreme Court opinions but is emphatically not the exclusive approach. Having said that, he transitions to a discussion about the question of fit and justification.
Sunstein discusses non-originalist approaches to constitutional interpretation, affirming their legitimacy while emphasizing that they are not obligatory. He explores how judges might interpret the Constitution in ways that serve the democratic process or invite moral reasoning, highlighting that these approaches must be assessed on their merits rather than dismissed outright.
Sunstein says Dworkin’s concept of interpretation involves two obligations: “fit” and “justification.” This means interpreters must stay true to the materials they are working with and strive to make them the best they can be. Sunstein likens this to being a writer in a chain novel, where each writer must continue the story while making it the best it can be. (pp.80-84)
He acknowledges that in American constitutional law, judges have discretion to shape the narrative within certain boundaries. They must consider what approach aligns best with existing materials, but this leaves room for different interpretations. (p.82)
Sunstein highlights that the relationship between decided cases, traditions, and the original public meaning of the text can lead to varying interpretations. Some judges prioritize original public meaning, while others respect precedent even if it contradicts their preferred interpretation. (pp.82-83)
Sunstein notes that Dworkin’s approach emphasizes both fit and justification but cautions against viewing it as the only conception of interpretation. Different people may have different views of what interpretation entails, and this diversity of perspectives should be acknowledged. (p.84) In my view, Sunstein’s approach is like Dworkin’s moral reading. The only difference is that Sunstein’s is minimalist. He also anticipates a “decisive objection” to moral readings. He writes: “Many people reject the idea that judges should give them; they think that moral readings are too unmoored or dangerous. Who are judges to tell us what morality requires? Maybe that is a decisive objection.” (p. 90) But he fails to offer a refutation.
Sunstein argues that there is no universally applicable approach to constitutional interpretation, as the appropriate theory depends on evaluating institutional capacities, particularly the strengths and weaknesses of legislatures and courts (p.88). This assessment involves balancing decision costs and error costs; for example, highly capable and error-free judges would influence the choice of an interpretation theory differently than error-prone judges. While Thayer’s approach of upholding legislation unless it clearly violates the Constitution is largely rejected today, it may still hold value in societies with exceptionally fair democratic processes and unreliable judicial systems (p.89). In societies where the Constitution’s original public meaning is imperfect but democratic processes are decent and judicial incrementalism is effective, a minimalist approach may be appropriate. However, in societies with flawed democratic processes and frequent violations of fundamental rights, democracy-reinforcing interpretations and moral readings by judges are more justified. These approaches must be defended by their potential to enhance the constitutional order, as the Constitution itself requires interpretation through external accounts aimed at improving the constitutional framework (p.90).
Sunstein’s approach to constitutional interpretation emphasizes the Constitution’s adaptability and its ongoing relevance through its ability to respond to evolving societal values. He cautions against excessive traditionalism, pointing out that rigid adherence to historical traditions—such as slavery and segregation—would be morally untenable. Instead, Sunstein argues for a living constitutionalism that reflects moral progress over time. His framework centers on two core principles: deliberative democracy and the anti-caste principle. Deliberative democracy stresses accountability, reason-giving, and public reflection, affirming the role of “We the People” as the ultimate sovereign. The anti-caste principle opposes systems of second-class citizenship and shapes constitutional understandings of equality, particularly concerning discrimination based on race, sex, and sexual orientation (p.162). While acknowledging that his approach may diverge from strict originalism, Sunstein maintains that constitutional law should be developed with careful attention to these principles, aiming to enhance justice and democratic legitimacy (p.163).
Sunstein recognizes that further development of these ideas will require substantial effort but aims to highlight their importance in shaping his approach to constitutional law. He argues against extreme Thayerism and suggests that constitutional law should not be reduced to algorithms but instead be “rooted in a common-law process,” guided by “moral aspirations and commitments,” “in which defining constitutional rulings are animated by an insistence on deliberative democracy and the anti-caste principle.” (p.164)
In his conclusion, Sunstein draws on historical quotes from James Jackson (1789) and Franklin Delano Roosevelt’s 1937 Constitution Day Address to highlight the evolving nature of constitutional interpretation. Jackson likened the Constitution to a newly launched vessel with untested properties, while Roosevelt celebrated its enduring vitality, stating: “So we revere it, not because it is old but because it is ever new, not in the worship of its past alone but in the faith of the living who keep it young, now and in the years to come.” Sunstein notes that the Constitution is no longer untried; its character has been revealed through the dedication of those who continually renew it (p.165).
Sunstein’s analysis offers a thoughtful framework for constitutional interpretation, urging us to consider approaches that enhance the constitutional order through intellectual rigor, moral reflection, and a commitment to justice and democracy. His argument underscores the importance of justifications beyond the text itself, recognizing that interpretation is deeply tied to broader ethical and societal values. By encouraging transparent, reasoned dialogue about the principles guiding interpretation, Sunstein emphasizes the need to consider the practical implications of various methods for strengthening the constitutional framework.
Although his chance at a Supreme Court appointment may have passed, Sunstein has successfully revived the debate on constitutional interpretation. His book serves as a powerful reminder to students of constitutional law and democratic theory that the moral insights of great political and legal philosophers like John Rawls and Ronald Dworkin remain vital and relevant. Sunstein’s work underscores that true fidelity to the Constitution demands continuous renewal, grounded in a commitment to justice, moral progress, and the evolving needs of a democratic society.
Alemayehu F. Weldemariam, Fellow, Center for Constitutional Democracy, Indiana University Maurer School of Law.
[i] Ronald Dworkin, Looking for Cass Sunstein, The New York Review,April 30, 2009; https://www.nybooks.com/articles/2009/04/30/looking-for-cass-sunstein/. Accessed on 09/24/2023.
[ii] Cass Sunstein, Political Conflict and Legal Agreement, The Tanner Lectures on Human values, Delivered at Harvard University, November 29-30, and December 1, 1994. https://tannerlectures.utah.edu/_resources/documents/a-to-z/s/Sunstein96.pdf
Accessed on 09/24/2023
[iii] Cass Sunstein, “Incompletely Theorized Agreements Commentary,” 108 Harvard Law Review, 1733 (1994).
[iv] Cass Sunstein, A Constitution of Many Minds: Why the Constitution Doesn’t Mean What It Meant Before”, Princeton, NJ: Princeton University Press, 2009.
[v] Ibid
[vi] Cass Sunstein, Constitutional Personae, New York: Oxford University Press, 2015.
