Book Review: Radicals in Robes

Conservatives skewered the Harriet Miers nomination for the U.S. Supreme Court because they feared they lacked knowledge of her positions on various issues important to them. Although predating the Miers nomination, Cass R. Sunstein's Radicals in Robes attempts to elevate the discourse over federal judges beyond litmus tests and paper trails to analysis of theories of constitutional interpretation.

Sunstein, who teaches at the University of Chicago Law School, identifies four major theories of constitutional interpretation and then analyzes many of the today's hot button issues, as well as traditional constitutional principles, through the prism of the leading theories. Sunstein ultimately sees a division not between activist and non-activist judges, strict constructions and loose constructionists or even liberals versus conservatives. To him, the current debate over how to interpret the U.s. Constitution is framed in the context of a division between "fundamentalism" and "minimalism."

Fundamentalist constitutional theory is based on the idea that the proper approach to constitutional law is discerning and applying the intent behind the Constitution when it was ratified in 1789, the intent behind the Bill of Rights when it was ratified in 1791 or when the Fourteenth Amendment (through which much of the Bill of Rights has been applied to the states) was adopted in 1868. This approach is most often advocated by conservatives. In particular, Sunstein associates it with a movement known as the Constitution in Exile. Proponents of that view contend that decisions dating from the 1930s have erased the original intent behind the Constitution and that its true meaning needs to be restored.

At the other end of the spectrum is perfectionism, a position perhaps most often associated with liberals. Perfectionists don't doubt the binding nature of the language in the Constitution. They believe, however, that it should be interpreted in broad terms so that the ideals it expresses are fully realized. In other words, perfectionist judges believe their obligation is to make the law "better." Sunstein correctly notes that just as adoption of the fundamentalist approach could produce sweeping changes in current law, one of the problems with perfectionism is that it too can result in expansive change that goes beyond what any particular case calls for. He points to both Brown v. Board of Education and Roe v. Wade as examples of decisions that are earthquakes in constitutional analysis by laying down broad rules of general application rather than nudging the law along by narrowly addressing the issues presented and allowing the law to develop naturally.

A third theory, and the one least used today, is majoritarianism. Majoritarians believe the other branches of government tend to express the majority view of the country and that the majority view should impact constitutional interpretation. Therefore, they tend to defer to the other branches of government and are willing to uphold the actions of those branches unless they clearly violate the Constitution.

The fourth theory—and the one Sunstein supports—is minimalism. Minimalists believe judges and courts should do no more than necessary to decide a case. According to Sunstein, minimalists try to avoid the deep core questions like the role of religion in society. Instead, they believe "a free society makes it possible for people to agree when agreement is necessary, and unnecessary to agree when agreement is impossible." In other words, while a certain approach may be needed to resolve the issues presented in a particular case, use of that approach need not require full agreement on its foundations. Thus, the law grows and changes incrementally by resolving only the problem or issue presented rather than through broad pronouncements establishing resolutions for other problems not presented by the particular case.

Article Author: Tim Gebhart

Tim Gebhart lives in Sioux Falls, SD, where he practices law in order to provide shelter for his family, his dogs, and his books. He is a member of the National Book Critics Circle and his blog de guerre is A Progressive on the Prairie.

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