A Constitution of Many Minds

A Constitution of Many Minds: Why the Founding Document Doesn't Mean What It Meant Before

CASS R. SUNSTEIN
Copyright Date: 2009
Pages: 240
https://www.jstor.org/stable/j.ctt7rwsr
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  • Book Info
    A Constitution of Many Minds
    Book Description:

    The future of the U.S. Supreme Court hangs in the balance like never before. Will conservatives or liberals succeed in remaking the court in their own image? InA Constitution of Many Minds, acclaimed law scholar Cass Sunstein proposes a bold new way of interpreting the Constitution, one that respects the Constitution's text and history but also refuses to view the document as frozen in time.

    Exploring hot-button issues ranging from presidential power to same-sex relations to gun rights, Sunstein shows how the meaning of the Constitution is reestablished in every generation as new social commitments and ideas compel us to reassess our fundamental beliefs. He focuses on three approaches to the Constitution--traditionalism, which grounds the document's meaning in long-standing social practices, not necessarily in the views of the founding generation; populism, which insists that judges should respect contemporary public opinion; and cosmopolitanism, which looks at how foreign courts address constitutional questions, and which suggests that the meaning of the Constitution turns on what other nations do.

    Sunstein demonstrates that in all three contexts a "many minds" argument is at work--put simply, better decisions result when many points of view are considered. He makes sense of the intense debates surrounding these approaches, revealing their strengths and weaknesses, and sketches the contexts in which each provides a legitimate basis for interpreting the Constitution today.

    This book illuminates the underpinnings of constitutionalism itself, and shows that ours is indeed a Constitution, not of any particular generation, but of many minds.

    eISBN: 978-1-4008-2992-7
    Subjects: Law, History, Political Science

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-xiv)
  4. Introduction: Jefferson’s Revenge
    (pp. 1-16)

    In the earliest days of the American Republic, James Madison and Thomas Jefferson offered radically different views about the nature of constitutionalism in their young nation. Madison insisted that the Constitution should be relatively fixed. In his view, the founding document had been adopted in a uniquely favorable period, in which public-spirited people had been able to reflect about the true meaning of self-government. Miraculously, We the People had succeeded in producing a charter that would be able to endure over time. The Constitution should be firm and stable; the citizenry should take the document as the accepted background against...

  5. Part I. Preliminaries

    • Chapter 1 There Is Nothing That Interpretation Just Is
      (pp. 19-32)

      Many people claim that the Constitution must be interpreted in their preferred way. They insist that the very idea of interpretation requires judges to adopt their own method of construing the founding document.

      These claims are wrong. No approach to constitutional interpretation is mandatory. Any approach must be defended by reference to its consequences, not asserted as part of what interpretation requires. We can go further. No approach to constitutional law makes sense in every imaginable nation or in every possible world. The argument for any particular approach must depend, in large part, on a set of judgments about institutional...

  6. Part II. Traditionalism

    • Chapter 2 Burkean Minimalism
      (pp. 35-59)

      Consider the following cases:

      1. For over fifty years, the words “under God” have been part of the Pledge of Allegiance. Some parents object to the use of those words, arguing that under current constitutional principles, the reference to God must be counted as an illegitimate establishment of religion.

      2. Margaret Jones and Janet Smith have lived as a couple in Arizona for over a decade. They now seek to marry, but Arizona law forbids them from doing so. They contend that the Constitution bans Arizona from denying them a marriage license. Arizona responds that throughout American history, marriage has...

    • Chapter 3 Rationalists vs. Burkeans
      (pp. 60-92)

      Rationalist minimalists seek narrowness and shallowness, but they are entirely willing to rethink traditions and established practices. Rationalists are interested in the reasons behind practices, not in practices themselves. An underlying idea is that traditions are often unjust or arbitrary and that society frequently progresses by subjecting them to serious challenge. On this view, the delegation of decision-making authority to long-standing traditions is perverse, and Burke was quite wrong to treatprejudiceas a word of approval. The rationalist view can claim support in what might be called the Jeffersonian challenge to Burke. Jefferson emphasized that current generations are, in...

    • Chapter 4 Due Process Traditionalism
      (pp. 93-122)

      We have seen that the Supreme Court and individual justices have often suggested that under the due process clause, rights qualify as such only if they can claim firm roots in long-standing traditions.¹ In denying the right to physician-assisted suicide,² for example, the Court appeared to settle on a kind of due process traditionalism, captured in the view that long-standing cultural understandings are both necessary and sufficient for the substantive protection of rights under the due process clause. On this view, no interest qualifies for protection under that clause if it lacks historical credentials; and interests that can claim such...

  7. Part III. Populism

    • Chapter 5 Backlash’s Travels
      (pp. 125-139)

      Let us define “public backlash,” in the context of constitutional law, in the following way: Intense and sustained public disapproval of a judicial ruling, accompanied by aggressive steps to resist that ruling and to remove its legal force. In cases of backlash, many minds have rejected the Court’s decision, and they have done so with conviction.

      It is easy to imagine cases in which a controversial judicial ruling is likely to produce public backlash. Perhaps the ruling involves property rights, presidential power in connection with the war on terror, the use of the words “under God” in the Pledge of...

    • Chapter 6 Public Opinion and Social Consequences
      (pp. 140-164)

      Judicial rulings can, and sometimes do, offend public opinion. They might even provoke outrage. If the Supreme Court ruled, today or tomorrow, that states must recognize same-sex marriages, national politics would undoubtedly be affected, and a movement for a constitutional amendment would be highly likely. If the Court said that the establishment clause forbids the use of the words “under God” in the Pledge of Allegiance, the Court would face a great deal of public outrage. If the Court struck down measures designed to protect against the risk of terrorism, especially in a period in which that risk is acutely...

    • Chapter 7 Public Opinion and Judicial Humility
      (pp. 165-184)

      Justice Bentham cares about the views of many minds, because those views bear on the effects of his rulings. But Justice Bentham has no doubt about whether he is right. Let us now imagine a different judge, one who is not entirely confident of his views; he knows that he might be wrong. To clarify the problem, let us imagine that we are dealing not with Justice Bentham but with someone else, who happens to be named Justice Condorcet—so named, of course, because of his interest in the Condorcet Jury Theorem.

      To clarify the problem, recall propositions 1A–1F,...

  8. Part IV. Cosmopolitanism

    • Chapter 8 What Other Nations Do
      (pp. 187-209)

      The practice of consulting “foreign precedents” has received a great deal of attention in connection with several controversial decisions of the Supreme Court.¹ In those decisions, the Court has referred to the law of other nations in deciding whether a state practice—banning sexual relations between people of the same sex, calling for execution of juveniles or the mentally retarded—violates the United States Constitution.² It is an understatement to say that many people have been disturbed by those references. Why should the meaning of the American Constitution turn on the views of judges (and others) in Germany, France, Italy,...

  9. Afterword
    (pp. 210-216)

    Americans revere their Constitution. But what, exactly, is their Constitution?

    The most obvious answer is the written text, most of it well over two hundred years old. But the Constitution was hardly completed by the drafters and ratifiers in the eighteenth century. Formal amendments have been exceedingly important; they have altered the document in fundamental ways. But those amendments are merely a part of the set of processes that have produced existing understandings of the founding document.

    If we are speaking of the Constitution’s founders, we must include not merely Madison and Hamilton and their compatriots, but also Abraham Lincoln,...

  10. Acknowledgments
    (pp. 217-218)
  11. Index
    (pp. 219-225)