Back to the sources: How to interpret the Constitution, according to Cass Sunstein (Part I)

Guest Blogger

Roberto Gargarella

Back to sources

In what follows, I shall present and critically examine the book How to Interpret the Constitution, recently published by the influential jurist Cass Sunstein. I shall divide my study into two parts: the first one, mainly descriptive, where I shall present the book under analysis; and the second one, more evaluative, where I shall offer a critical review of Sunstein’s work.  

Sunstein’s new book is a simple, brief, and exciting work through which the Harvard professor deals with a complex subject, such as constitutional interpretation -perhaps the most crucial subject in the theory of law. In order to explore this challenging issue, Sunstein invokes authors, concepts and principles he had already discussed and defended long ago. In this sense -one could claim- Sunstein "returns to the sources" of his academic career. 

This “return to the sources” may be considered a cause for celebration because many of those bases -I shall maintain- were very good. They hark back to a Sunstein committed to robust ideas of democracy, social justice, and equality. In any case, despite the attractiveness of the main theme under study, and the interesting approach proposed by Sunstein on the subject, the balance of the work is uneven: the text is as attractive in some of its conclusions as it is fragile in some of its foundations.

Initial questions 

Sunstein's undertaking in this new book is as limited as it is valuable: to deepen the reflections on the theory of constitutional interpretation, which he had already advanced decades ago. His main objective is to answer a fundamental question, which is made explicit at the beginning of his work: How to choose a theory of constitutional interpretation? His attempt to respond to this question is based on some relevant assumptions, beginning by the one that says that "the Constitution does not contain the instructions for its interpretation" (Sunstein, 2023, p. 9). Another crucial assumption, presented in Chapter 1 of the book, is the idea that there are several interpretive theories "in competition with each other". More precisely, for Sunstein, there are many and varied interpretive theories that have sufficient standing to be considered "candidates" for interpreting the Constitution.[1] Through his book, Sunstein presents and explores some of these theories, including the following: textualism, semantic originalism, intent originalism, Lawrence Solum's "public meaning" originalism, expectations originalism, John Ely's protection of democracy, traditionalism, Ronald Dworkin's moral readings, Thayerism, common law constitutionalism, and Adrian Vermeule's common good constitutionalism. 

Faced with the crucial question of "which theory to choose," Sunstein offers a plain answer, which is the following: "Judges (and others) should choose the theory that would make the American constitutional order better rather than worse" (Sunstein, 2023, p. 8). This answer -he claims- is intended "to emphasize that when people disagree about constitutional interpretation, they disagree, in reality, about what might make the constitutional order better or worse" (ibid, 8). 

Immediately after offering this preliminary answer, Sunstein accounts for two possible replies. First: "Who decides what makes the constitutional order better or worse?" He responds: "Anyone trying to choose a theory of interpretation. Judges; legislators; presidents; you; me; us... That is all there is. There is no one else" (ibid. 9). The second challenge concerns the fundamental question of how to determine what makes the constitutional order "better or worse." Sunstein devotes almost the entire remainder of this work to this question. In the following section, I will delve into the answer offered by Barack Obama’s former advisor. 

Reflective equilibrium and "fixed points" 

According to Sunstein, judges ("and others”) should determine which interpretive theory to adopt through "a kind of reflective equilibrium," such as that proposed by John Rawls in his A Theory of Justice. Rawls' idea of "reflective equilibrium" involved shaping "moral judgments" (in Rawls' case, the "principles" of his "theory of justice") out of a series of deeply held intuitions and convictions - the "fixed points" Sunstein speaks of here. Ideas, for example, such as the one that says that torturing a child is wrong or that slavery is unacceptable. From those “fixed points” that we can consider as "morally sound" (widely held and accepted by a vast majority of people), the aim is to shape a general theory (a theory of justice, in the case of Rawls; a theory of interpretation, in the case of Sunstein). The idea is: we first choose certain "fixed points" that define our community’s legal practice and then, and from there, we select, through a process of “reflective equilibrium”, the interpretive theory that will allow us to fit best, and make consistent, those "fixed points". 

In this book, Sunstein not only invites us to think about what the "fixed points" of American law are, but he also offers us, in a very open way (coming “out of the closet”, he says), a relatively complete list of "fixed points" –“fixed points” that, in his personal opinion, are part of the "solid rock" of his country's law. The most obvious and important of this “fixed points” is the Supreme Court decision in Brown v. Board of Education. I am referring, obviously, to the Court’s decision against racial segregation in schools, through which the tribunal contributed to ending the unfortunate era marked by the principle of "separate but equal".[2] Along with that paradigmatic decision, Sunstein adds other "fixed points" of U.S. law, which include the following:  

• decisions that invalidated discrimination based on gender.
• a powerful protection for political speech.
• the right of married couples to use contraceptives (Griswold v. Connecticut).
• the discretion given to administrative agencies.
• The idea that gerrymandering can be judicially reviewed and limited.
• regulation of the use of money in politics (controls on campaign spending, etc.).
• The idea that political measures, such as maximum work hours or minimum wages, are not constitutionally prohibited (contra-Lochner), etc. 

Which interpretative theories should be discarded? 

For Sunstein, once we have a series of "fixed points" on which to rely, we are then in a position to determine, through a process of "reflective equilibrium," which interpretive theories do their job well, and which ones do not. 

Sunstein begins this evaluative endeavor by scrutinizing two enormously influential interpretative theories, which are, in principle, in tension with each other: a conservative theory, namely originalism, which invites us to "look back" (to the origins of the law) when interpreting the Constitution; and an alternative one, which suggests a principle of substantial (democratic) deference from judges to legislators -what we will call, for now, "Thayerism" (the deferential interpretative approach advanced by James Thayer).[3] Sunstein proposes to "test" those two influential theories (but also the favored method of "reflective equilibrium") by asking the following question: Are those interpretative theories able to properly accommodate the favored "fixed points”? 

For Sunstein, originalism is unable to accommodate cases such as Brown v. Board of Education; or the idea that the Constitution does not prohibit maximum hours or minimum wages; or the principle according to which political speech deserves special protection. This is because originalism, at least in its standard version, considers that the meaning of the Constitution was "fixed" at the (original) time it was drafted, where, for example, a robust notion of private property prevailed (a robust notion that were incompatible with the advances imposed by the New Deal). This was a time, in addition, where constitutionalism seemed to coexist with situations of serious racial segregation (the foundations of the principle of "separate but equal" were laid there). 

Interestingly, Sunstein also shows that his proposed method, namely “reflective equilibrium," not only suggests us to discard or resist conservative interpretative theories such as originalism, but also progressive ones, such as Thayerism. In fact, "Thayerism" - the "deferential" conception- would also be misplaced in the face of his proposed "fixed points". More precisely, this "progressive" position would be incapable of accommodating the same "fixed points" that originalism was unable to accommodate. For instance, "Thayerism" could not account for Brown given that the principle of "separate but equal" cannot be simply presented as "manifestly wrong" or unquestionably contrary to the Constitution (indeed, that is why such a principle enshrining racism survived for decades, and withstood strict "judicial scrutiny"). Similarly, it would be also unclear why we should consider to be "manifestly inconsistent with the Constitution" a rule that did not ensure a special protection to political speech. 

According to Sunstein, those results (the rejection of both originalism and Thayerism) speaks well of the proposed method of “reflective equilibrium”. The suggested method -one could claim- does not appear as a mere rationalization of one’s preferences: it is a proposal that induces us to preserve or discard positions based on criteria that are independent of one's ideological preferences. In any case, we still need to go one step further. The question that we now face is: can we say something else, regarding which interpretative theory to adopt (rather than discard)? 

What interpretative theory should we adopt? 

In order to answer this last and decisive question, Cass Sunstein resorts to two “additional fixed points": the deliberative conception of democracy and the anti-caste principle. These are -in his view- two abstract "fixed points", which come from theory, but that are at the same time related to the very foundations of (American) constitutionalism. Moreover, these are two ideas that are closely connected to the author's theoretical trajectory: Sunstein discussed and defended both views in many of his early works, 30 years ago (see, for example, Sunstein, 1993; Sunstein, 1994). 

On the idea of "deliberative democracy," Sunstein argues that it is a notion that "philosophers, political scientists, historians, and academic lawyers" have elaborated and recognized as closely linked to the more profound tradition of American constitutional law (Sunstein, 2023, p. 162). According to Sunstein, such a notion "plays a high premium on reflection and reason-giving" within an institutional framework where voters have enormous (ultimate) control over the most important public issues, and where majority rule exists but "is not enough." The results, in a deliberative democracy, "must…be justified by reasons" (see, also, Sunstein 1984). According to the author, it is his commitment to deliberative democracy that in the end explains many of the propositions presented above as his "fixed points": the solid legal protection he advises for political discourse; his support for basic New Deal measures; his defense of initiatives that restrict or regulate the use of money in politics; his opposition to political gerrymandering, etc. 

On the anti-caste principle, Sunstein tells us that it is a principle that "forbids the creation of second-class citizenship, and which informs existing constitutional law concerning equality, particularly in the domain of discrimination based on race, sex, and sexual orientation" (ibid., 163). Moreover, it is a vision -he claims- linked to the republican political philosophy of the "founding era" - a principle that Justice Harlan took up and summarized in his famous vote in Plessy v. Ferguson when he proclaimed "There is no caste here" (ibid.). According to Sunstein, the anti-caste principle is the one that appears behind his defense of "fixed points" such as Brown; or the one that leads him to uphold the invalidation of gender discriminatory laws; and also the one that allows him to support affirmative action policies; etc.[4] 

With the presentation of these two additional "fixed points", we would approach to the end of Sunstein’s proposed exploration in the area of constitutional interpretation. At this point -he could claim- we know the diversity of existing interpretive theories; we know that all of them can be, in principle, defended; we also know that none of those theories is, in itself, correct. And, at the same time -he could add- we have learned that there is a method (“reflective equilibrium”) that helps us navigate between these differences, and distinguish between better and worse interpretative theories (theories more or less capable of "making the law better"). That proposed method would require us to recognize the "fixed points" of the law of our country, and then rank the different theories according to their ability to "accommodate" those "fixed points." This -he would conclude- can be done with the additional help of two "additional fixed points", of a theoretical nature, but anchored in the country's legal tradition: deliberative democracy and the anti-caste principle. Sunstein does not go beyond that point. He admits it openly: “You might me disappointed to hear that my goal is not to answer ^[ the question about the best approach to constitutional interpretation is^]” (Sunstein 2023, p. 16). What he tried to do through the book is to “understand what those who disagree about theories of interpretation are actually disagreeing about, and offering an account of how to choose among competing theories” (ibid.). That would be it: the end of the journey.

Roberto Gargarella is Professor of Constitutional Law at the Universidad de Buenos Aires. You can reach him by e-mail at roberto.gargarella@gmail.com.

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BIBLIOGRAFIA 

Breyer, S. (2011), Making Our Democracy Work, New York: Vintage.

Dworkin, R. (1977), Taking Rights Seriously, Cambridge, Harvard University Press.

Dworkin, R. (1986), Law’s Empire, Cambridge: Harvard University Press.

Elster, J. (1986) “The Market and the Forum”, en J. Elster & A. Hylland (eds.), Foundations of social choice theory, Cambridge, Cambridge University Press, 1986, 103 132.

Ely, J. (1980), Democracy and Distrust, Cambridge, Harvard University Press.

Habermas, J. (1988), Between Facts and Norms, Cambridge, The MIT Press.

Holloway, C. (2024), “The Great Constitutional Divide”, The National Review. Magazine,   https://www.nationalreview.com/magazine/2024/01/the-great-constitutional-divide/

Rawls, J. (1971), A Theory of Justice, Cambridge: Harvard University Press.

Sunstein, C. (1984) "Naked Preferences and the Constitution," 84 Columbia Law Review 1689.

Sunstein, C. (1988) “Beyond the Republican Revival”, 97 Yale L. J. 1539.

Sunstein, C. (1990), After the Rights Revolution, Cambridge: Harvard University Press.

Sunstein, C. (1993), The Partial Constitution, Cambridge, Harvard University Press.

Sunstein, C. (1994), “The Anticaste Principle,” Mich. L. Rev. 92, 2410.

Sunstein, C. (1999) One case at a time. Judicial minimalism on the Supreme Court, Cambridge, Harvard U.P.

Sunstein, C. (2015), “There is Nothing that Interpretation Just Is,” Constitutional Commentary 30.

Sunstein, C. (2023), How to interpret the Constitution, Princeton: Princeton University Press.

Sunstein, C. & Vermeule, A. “Interpretation and Institutions,” 101 Mich. L. Rev. 885 (2003).

Thaler, R. & Sunstein, C. (2009), Nudge: Improving Decisions About Health, Wealth, and Happiness, London: Penguin Books.

Thayer, J. (1893), “The Origin and Scope of the American Doctrine of Constitutional Law, Harvard Law Review, Vol. 7, No. 3 (Oct. 25), pp. 129-156. 

Roberto Gargarella. Doctor in Law (University of Buenos Aires); Jurisprudence Doctor (University of Chicago). CONICET (Argentina)/ Univ. Pompeu Fabra (Spain)