Sunstein: Right Wing-Courts Are Wrong for America

BY JEFFREY JAMISON

Professor Cass Sunstein (´78) discusses his new book Radical In Robes with the HLS ACS chapter.

Last Thursday, at an event sponsored by the American Constitution Society (ACS), University of Chicago law professor Cass Sunstein (HLS ’78) challenged a standing room only audience in Langdell North to imagine the State of Illinois establishing a “Church of Illinois” as the official state church, the United States Postal Service discriminating against Hispanics, and any state forbidding people from living with their grandchildren. He argued that this parade of horribles would receive support from the Supreme Court, if it applied a fundamentalist approach — one embraced by many conservatives today — to interpreting the Constitution.

This ACS event was Sunstein’s latest stop on his nationwide tour promoting his new book, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America. Outlining his book, Sunstein explained that there are four approaches to constitutional law: bipartisan restraint theory, perfectionism, minimalism, and fundamentalism.

First, Sunstein noted that bipartisan restraint theorists, most prominently exemplified by Oliver Wendell Holmes, believe that courts should uphold legislation, so long as the legislation does not blatantly violate the Constitution. Sunstein said that Justice Breyer is the closest example of a bipartisan restraint practitioner on the present Court, but he is not an ideal example because, even though he often cedes to the will of Congress, he is not too restrained in respecting the will of state courts and legislatures.

Second, paraphrasing perfectionist theorist Professor Ronald Dworkin, Sunstein declared that perfectionists believe that what “the Supreme Court ought to do is to make the Constitution the best it can be by putting its provisions in the best constructive light.” He explained that perfectionism was the major creed of the Warren court. Perfectionism, opined Sunstein, accounted for the creation of the right to privacy in Griswold v. Connecticut, the criminal procedure revolution that began with Miranda, and the principle of one-person, one-vote.

Sunstein then moved to the main event: the steel cage match over the soul of the current Court and federal judiciary between minimalism and fundamentalism. He articulated his two axes of minimalism. First, minimalists believe that the Court should rule narrowly, only addressing the issues before the Court. Second, minimalists argue that the Court should think shallowly, avoiding deep, theoretical, contentious positions. Justice O’Connor, Sunstein pointed out, is historically one of the best examples of a minimalist jurist.

Sunstein warned the audience that the problem with the minimalist approach is that it is unpredictable and does not provide clear direction for the executive or legislative branches. He demonstrated this problem by asserting that, following the Supreme Court’s minimalist opinions involving detainees from the War on Terror, the Bush administration was (and still is) unclear as to what it could and could not do in Guantanamo. Sunstein added that an additional problem with this approach is that depth and not shallowness should be prized when dealing with areas of law that already have a good theoretical foundation, and there is narrow clarification, e.g. property or contracts.

Sunstein then focused the remainder of his talk on the fundamentalist approach to constitutional law. He proclaimed that fundamentalism is on the rise in the federal judiciary. He explained that the analogy to fundamentalist religion, while not saying anything evaluative about its religious context, is intentional. Fundamentalists believe that the Constitution means what originally meant to mean. Essentially, the Constitution should be interpreted based on the understandings held by ratifiers at the time of ratification.

Sunstein claimed that the fundamentalist approach, whose greatest practitioner is Justice Thomas, is not being practiced faithfully. Decisions are often based on partisanship rather than an honest engagement with the enterprise. For example, Justices Scalia and Thomas, who claim to be fundamentalists (albeit Scalia being a self-proclaimed “faint-hearted fundamentalist”), have argued strongly against affirmative action without giving even a footnote to the original understanding of the ratifiers of the Fourteenth Amendment. Sunstein contended that affirmative action would have been perfectly consistent with the ratifiers’ understanding of the 14th Amendment.

Sunstein also pointed to Scalia and Thomas’s holdings that essentially proclaim that the Fifth Amendment Takings Clause prevents regulatory takings, which was not the view of the ratifiers of the Bill of Rights, according to constitutional historians.

Furthermore, Sunstein reasoned that fundamentalists cannot claim the interpretative high ground without having demonstrated that it was the original understanding of the ratifiers that their understanding be controlling interpretive method throughout the development of American jurisprudence. Sunstein suggested that none of the leading fundamentalist theorists have proved, with historical evidence, that the ratifiers believed that their understanding should be the lens through which we should now interpret the Constitution.

Sunstein argued that as you attempt to view modern day issues like wire tapping and sex discrimination through the lens of the ratifiers, the fundamentalist project starts to break down conceptually, and turns into something desperate for stability. He maintained that it is impossible to apply fundamentalist principles to modern day problems without applying modern understandings to the original understandings. If we could travel back in time to ask Madison about wiretapping and the Fourth Amendment or the ratifiers of the Fourteenth Amendment about sexual harassment and the Equal Protection Clause, we would have to explain technological advances and changes in our society and thereby bring their understanding closer to ours.

His most scathing criticism of the fundamentalist method of interpretation was saved for the application of this interpretation to some of the most pressing issues in society today.

According to Sunstein, under a strict fundamentalist regime, federal agencies could engage in discrimination, since the Fourteenth Amendment does not apply to the federal government. Each state could establish an official religion, because, as Justice Thomas has argued-and historically is probably right, the Establishment Clause does not apply to the states. The Clean Air Act, the Federal Communications Commission, and Social Security would not be constitutionally permissible. Neither the right to privacy nor the holding in Brown v. Board of Education would be recognized.

While this parade of horribles may seem improbable, Sunstein pointed out that there are many judges on the federal bench and in the current administration who have argued in favor of some, if not all, of these positions. Sunstein concluded that the fundamentalist agenda, taken seriously, as it is by many, would call for a revision of our nation’s most important institutions in a way that would make concerns over the overturning of Roe v. Wade look like child’s play.

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