Cass Sunstein on Originalism


Professor Cass Sunstein and 3L Jeff Harris

On the final day of Senate confirmation hearings for Supreme Court nominee Samuel Alito, Professor Cass Sunstein addressed 50 students on the debate surrounding originalism and constitutional interpretation. An HLS alumnus, Sunstein clerked on the Supreme Court for Justice Thurgood Marshall before taking a teaching position at the University of Chicago and becoming a leading scholar of constitutional law.

Originalism, Sunstein explained, does not rely on the Constitution’s framers to ascertain statutory meaning, but rather on its ratifiers. The authority of the Constitution is not drawn from the Founding Fathers, but “We the People.” Originalism seeks the original public meaning of terms and phrases, as opposed to attempting to gauge the intentions of a few individuals.

Sunstein attacked the premises of originalism on three fronts. First, he posited that conservative judges who vocally ascribe to originalism consistently fail to follow the doctrine when it dictates a result that they personally find politically unpalatable. For example, a historical analysis of the original understanding of the Fourteenth Amendment may support affirmative action through congressional actions like the Freedman’s Bureau. However, very few originalist judges have ever used this original meaning to defend affirmative action. As such, originalism opens itself to the attack that it is nothing more than a vehicle to enact the political platform of the Republican Party.

Second, Sunstein suggested that originalists have never answered the quetion of whether or not the Constitution’s ratifiers ever intended for future generations to remain faithful to their original understanding. This historical gap is rarely addressed by originalists and could prove fatal to their claimed authority.

Finally, Sunstein argued that an original understanding may be inherently lost when one attempts to apply it to novel legal situations. Just as we cannot expect an agricultural understanding of the commerce clause to be entirely pertinent to the Internet, we cannot apply a coherent interpretation of the ratifiers’ intent in modern developments without losing the very meaning originalists seek to preserve.

Even overcoming any of the previous problems, Sunstein finds the consequences of true originalism infeasible and looks to Burkean Minimalism as its realistic counterpart. The consequences of originalism would be “edifice destroying” to such widely accepted rulings as Brown and the incorporation of the Establishment Clause to the states. Burkean Minimalism, Sunstein argues, is a more realistic modification of true originalism, taking original understanding into account along with the ramifications of that understanding on the present nature of society. Following such an approach would mean that “little French revolutions” in legal precedent would be rejected while cases like Brown would stand.

Of course, this presents its own problems. When has a decision been “accepted” enough to receive deference? The obvious example is Roe, which Sunstein acknowledges was a “French Revolution” in 1973. But is it too woven into our legal fabric to allow Burkean Minimalists to reject it? Sunstein believes a true Burkean Minimalist would probably reject Roe by applying a two-part Burkean test: 1) has the precedent been built upon? and 2) would cutting it out significantly affect other areas of law? Questions like this, Sunstein suggested, will always involve subjective judgment that a more objective originalist (or creative progressive) would be able to sidestep.

Although Sunstein believes that nominee Alito has hinted at being an originalist, scholars will have to wait to see exactly which type of interpretation Alito will employ if confirmed.

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