Book Review: Radicals in Robes - Page 2

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.

Sunstein believes these theories show that terms like "activist judge," now a favorite epitaph of conservatives, serve no useful purpose. He contends activism exists on both sides of the political spectrum. For example, some of the positions taken by the two leading proponents of fundamentalism on the supreme court—Justices Antonin Scalia and Clarence Thomas—would overturn years of established law and precedent.In fact, Sunstein points out that the Rehnquist Court struck down decisions of Congress on more than 30 occasions, even provisions of legislation that had strong majority support in Congress. If judicial activism is engaging in lawmaking by judicial decree, the Rehnquist Court fits that label.

Sunstein applies fundamentalist, minimalist and perfectionist analysis to a variety of issues facing the country, including such current ones as abortion and the right to privacy, affirmative action, same-sex marriage and presidential power in the so-called war on terror. His intent is to show how each camp would address the issue and the likely or potential outcome from each, In so doing, Sunstein is blisteringly critical of fundamentalism, believes perfectionism poses its own dangers and is a strong advocate of minimalism. He points out that the ultimate conclusions fundamentalism produces are often at odds with what we today view as traditional, established law. Radicals in Robes also accuses fundamentalists of inconsistency. For example, while willing to invoke "original intent" to advocate certain constitutional positions, they discard or overlook constitutional history if the "original intent" is inconvenient or fatal to the result they hope to achieve, such as the debate over whether the Second Amendment actually creates an individual right to gun ownership.

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.

Visit Tim Gebhart's author page — Tim Gebhart's Blog