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

Guest Blogger

Roberto Gargarella 

Some critical notes

In the first part of this paper, I described some of the central features of Cass Sunstein's new book, How to interpret the Constitution. In that initial part, I referred to the different interpretative theories presented by Sunstein in his book, and also to the method he proposed for selecting a theory of constitutional interpretation from among them. The method in question was the Rawlsian "reflective equilibrium", built on the basis of certain "fixed points" or paradigmatic judicial cases (say, in the case of American law, judicial decisions such as Brown or Griswold), and also with the help of other theoretical "fixed points" (in his proposal, deliberative democracy and the "anti-caste principle"). Having completed that descriptive introduction, I will now present the second part of my analysis, which will be of a more evaluative and critical nature. I will first make two brief introductory remarks, and then move to a more substantive examination of Sunstein’s new work.

On the other hand, and now in favor of this particular new book, I would say that Sunstein’s “return to the sources” is interesting, because it allows us to re-encounter the "old Sunstein", who had made excellent contributions to law. That “old Sunstein” was the one who produced exciting papers like "Beyond the Republican Revival" or highly illuminating books like After the Rights Revolution or The Partial Constitution. Sunstein was, at that time, a progressive democrat who favored the egalitarian philosophy of John Rawls and defended Ronald Dworkin’s legal philosophy -theories that he would later set aside, perhaps too quickly. Sunstein's early works were supported by a broad-based and attractive conception, whose parts were mutually reinforcing. That conception included a republican reading of legal history (based on a controversial but exciting reading of the works of James Madison and Thomas Jefferson), and a deliberative conception of democracy (like the one advanced by Jurgen Habermas or Jon Elster). 

On a more substantive level, I will first mention that the book does a good job regarding one of its central proposals, namely introducing the problem of constitutional interpretation and critically examining the main existing interpretative theories. To be clear, Sunstein offers a succinct rather than meticulous examination of those theories, but this is because his work is mainly directed at people unfamiliar with the subject. In any case, the book is didactic, and his approach to the subject may be considered to be well-balanced and well-grounded (although some critics said that the task Sunstein undertakes, precisely on this point, fails crucially).[5] 

In contrast to the above, I think that Sunstein’s theoretical approach, in this book, is controversial and difficult to sustain. Once again, my general impression is that, unfortunately, Sunstein throws his theory into the public forum too soon. In that way, he leaves it at the mercy of severe and largely avoidable criticisms. More specifically, I believe that the main analytical tools that he proposes - the "reflective equilibrium," the "fixed points," the supporting theories (deliberative democracy, the anti-caste principle) - are hastily and sloppily presented, which makes his whole theoretical apparatus fragile. 

Let me begin by referring to the "supporting theories" (this is to say, to the last two "fixed points" presented by the author), namely deliberative democracy and the anti-caste principle. As I understand it, Sunstein's defense of both issues is in need of a more careful and robust support. Given the central role that such ideas play in sustaining his position, one would have expected a less superficial and more detailed treatment of those issues. Sunstein admits this deficiency in the last pages of his book. He makes it clear, then, that he is "perfectly aware" that these two ideas introduced at the end of his work (although very present in his initial studies) would require much more development. By way of apology, he mentions that his purpose was to "point in the direction of such ideas," and to "the centrality" that such conceptions have regarding "the particular approach to constitutional law" favored in his book (ibid., 164). We can take these clarifications for good, of course, but the truth is that recognizing or being fully aware of the problems that affect a proposition does not strengthen it, nor make it more rigorous: the deficit remains, and it is a serious deficit. 

Just to illustrate my point: one of the main ways in which Sunstein tries to support the relevance of resorting to those ideas (deliberative democracy and the anti-caste principle), is by showing the link that would exist between both conceptions and the roots of American law. However, the arguments that he presents in this respect are weak and not persuasive: Sunstein pretends that we take, as generally accepted, too controversial considerations. Think, for example, about the proposition that "the founding fathers" adhered to a deliberative understanding of democracy (which would be contradicted by the more common assumption that they assumed a "pluralist" or polyarchic conception of democracy). Alternatively, think about his claim regarding the presence of a strong and egalitarian version of republicanism, during the founding years (which would be another highly controversial claim, if we consider that the majority of those founding fathers were, just to begin, slave-owners).[6] In sum, such empirical claims are highly controversial. The fact is that Sunstein's interpretive approach ends up being based on very controversial assumptions, which should not be presented as if they were not. Much less, if what he intends to do is present such principles as "fixed points", widely shared by all members of the community (I will come back to this last issue below). 

Let me add a further note on the character of those two ideas or principles (deliberative democracy, the anti-caste principle) as "fixed points" of law. I begin by recalling the following: when presenting his vision on the "fixed points" of law, Sunstein mentions certain judicial decisions (such as Brown or Griswold) that all or almost all of us tend to recognize as benchmarks of American law. Fine. Now, it is something very different to say, then, that a theory like deliberative democracy, or a principle like the anti-caste principle, are also "fixed points" of law. This seems strange. 

I claim that the move is strange, first, in relation to the object of that reflection. The question is: is it appropriate to examine abstract principles (such as “deliberative democracy” or “the anti-caste principle”), through the same analytical tools (the "reflective equilibrium," the "fixed points") that we employ to evaluate the status of well-known and well-established legal decisions? It does not seem so. We might for instance say that, after long decades, we have socially converged in the endorsement of certain particular judicial decisions (Brown). However, it does not make sense to say the same about a theory of deliberative democracy or a particular reading of equality. Regarding those issues, it is difficult to recognize a collective "point of convergence". This, among other things, because we reflect less, collectively, about them (these are issues that are not part of our public conversation); but also, because the levels of disagreement we show on such matters seem much higher. The problem is, as we shall see, that Sunstein presents his approach, rigorously, in one form, but also in the opposite form, or open to multiple exceptions, in such a way that his vision ends up being diffuse and elusive. [7] 

Sunstein's approach in this respect is also strange at a different level: the one related to the subject of this reasoning. The question is: are we talking about agreements that all or the vast majority of the members of our legal community seem to have about the law (i.e., we all think that any reading about the law must be able to recognize the value of a decision like Brown); or are we referring, instead, to individual legal criteria, about which we are personally persuaded (i.e., because we are individually convinced about the value of the theory of deliberative democracy)? 

Between the Theory of Justice and the “chain novel” 

This last point helps us to address another question, more directly related to the method of "reflective equilibrium" -I mean, “reflective equilibrium” according to the version sponsored at the time by John Rawls. In his reference to the matter, Rawls did not appeal to -say- very intense personal preferences or convictions derived from one's philosophy or ideology. He referred to convictions fundamentally shared by all members of our community. For that reason, in his references to the subject, Rawls alluded to examples such as those of religious intolerance and racial discrimination. What I mean to say is that Rawls referred to issues on which the vast majority of society seemed to agree fundamentally. In his words (which were written in the first-person plural): 

We are confident that religious intolerance and racial discrimination are unjust. We have scrutinized these things and have reached what we believe is an impartial judgment not likely to be distorted by excessive attention to our interests. These convictions are provisional fixed points which we presume any conception of justice must fit (Rawls, 1971, pp. 19-20).

Sunstein is well aware of this view (chapter 4). However, in the ecumenical and conciliatory approach that he develops in the book, Sunstein suggests a different view on the matter.  He presents the matter as if each person selected his or her “fixed points” and then engaged in a process of “reflective equilibrium”. He examines these issues as if there were no conclusive reasons to say that such a conception, such a theory, or such a "fixed point" were the correct one (for all). For that motive, Sunstein may claim -after he presented his “own fixed points”: "these propositions are correct...These are my fixed points; they are part of my reflective equilibrium" (Sunstein, 2023, p. 161). For him, “each chooser -each one of us- must make a judgment about what those fixed points are, about exactly how fixed they are, and about whether one or another approach would endanger them” (ibid., p. 129). Now: this is not how we usually understand the idea of "reflective equilibrium," much less is this the way Rawls thought about the question. I insist: we are not dealing with issues fundamentally related to our personal preferences or theoretical convictions (where everyone has his views and where everyone's views, in principle, are equally plausible or reasonable). More specifically: when Rawls says that “we are confident that religious intolerance and racial discrimination are unjust” he is not thinking about those problems as a matter of “choice”. On the contrary, he is thinking of (something like) the collective recognition or acknowledgement of a problem that is common to all -a problem that is evident to all. The problem at stake is of such an entity that everyone can confidently point to it as a serious problem. In other words, it is not a debatable issue, about which, as Sunstein suggests, we have to "anticipate and offer convincing responses to counterarguments" (Sunstein 2023, p. 128). In fact, if these were highly debatable questions (if we had to make such intellectual efforts in order to persuade others about the importance of such problems), we would not be talking of "fixed points" in Rawls's terms. 

I have said something about Sunstein's approach to "fixed points" and its relation to Rawls's theory of justice, and now I want to say something about that theoretical approach and Ronald Dworkin’s theory of interpretation. I am thinking, in particular, of the interpretive theory presented by Dworkin in terms of the "chain novel." As we know, Dworkin’s “chain-novel-approach” to legal interpretation suggest that the task before the interpreter of the law is similar to that of the one who participates in the writing of a "chain novel" (Dworkin, 1986). To summarize Dworkin’s view in a nutshell: to do his or her job correctly, the participant in the "chain novel" must "look back," read what has already been written by previous participants, make sense of what has been written by all, and then determine what the "best possible continuation" of that collective novel is- a continuation that is capable of "accommodating" in the best way all that has already been written. In law, the (interpretative) task would (should) demand a similar intellectual exercise: the judge or interpreter looks back and seeks to make sense of all the written law to then determine what is the best possible continuation of that law, in the specific case under examination (a decision that “fits” with the past legal history). His decision, in that specific case, must "fit" well, in Dworkin's terms, with what has been decided so far by the legal community, read in "its best light." Or, to put it another way, that decision must fit with what Sunstein calls "fixed points" (it must make sense of Brown, Griswold, the rejection of Lochner, etc.).  The point is, so far, that in spite of the differences that separate the two authors (and perhaps despite Sunstein's own intentions), there are important points of coincidence between Dworkin’ and Sunstein’s work in the area. Among other coincidences, i) both authors are interested in the constructive interpretation of social practices; ii) both relate constitutional interpretation to an analysis of the community’s legal history; iii) both pay special attention to paradigmatic judicial decisions; and iv) both seek to reconstruct that legal history through a normatively charged approach.

Now, I was interested in drawing attention to the (non-expected) coincidences that appear between the two authors but, above all, in highlighting the crucial differences that exist between their approaches. First of all, while Sunstein seeks to derive, from his proposed "fixed points," the choice of an "interpretative theory," Dworkin seeks to derive, simply, the resolution of a concrete case. For example, faced with a case in which an affirmative action law is challenged, Dworkin might say that it is appropriate to uphold - rather than invalidate - that law if it can be demonstrated that this particular decision – say, the defense of a certain affirmative action measure - makes it possible to give an appropriate account of Brown and a whole saga of cases were racial equality, the dignity of the person, and so on, were sustained. My impression is that the enterprise undertaken by Dworkin (inferring the resolution of a case, from a well-established legal tradition) is much more natural and reasonable than that proposed by Sunstein (deducing the choice of an interpretive theory, from certain "fixed points"). 

The task proposed by Dworkin is more "natural" and reasonable, because it relates well to practices that most members of the legal community engage in, in one way or another. In fact -I submit- we usually think about the decision of a particular case, taking into account (in a more or less sophisticated way) legal decisions that have been made in the past, in similar cases or circumstances. We may or may not adhere to this approach (take it as our preferred approach) but it refers us to a task that in no way seems strange to us. Sunstein's proposal, on the other hand, appears as less "natural", if not directly counter-intuitive. For him, “the search for reflective equilibrium” plays a central role in constitutional law. “In fact” -he claims- “it is the only game in town”: “we cannot pull a theory of the sky, insist that it must be right, and declare victory” (Sunstein 2023, p. 11). But here, again, Sunstein seems to be mixing things up. We can affirm with him that, somehow, some kind of "reflexive equilibrium" plays "a central role in constitutional law". But that does not lead us to conclude, by any means, that this exercise of "reflective equilibrium" is the one we set in motion "in deciding how to interpret the Constitution" (or, even more strongly, when “choosing” the best interpretative theory). Those are two completely different claims. In fact, he still needs to convince us that we tend to look to past paradigmatic decisions in order to “choose” an interpretative theory. In other words, this does not seem to be the way in which we usually come to “defend” a certain theory of constitutional interpretation. The question is: Do we first “choose” or define, say, certain paradigmatic judicial decisions, in order to then “choose” an interpretative theory? Or is the exercise at stake rather the reverse? Most probably, the interpretative theory that Sunstein claims to find "at the end of the road" was already present from the very beginning. So, Sunstein’s proposal in this regard seems to be not only unusual but also unreasonable if not simply wrong. 

In fact, Dworkin could rightly point out that the theory now in question (the one that Sunstein seeks to derive from history) pre-existed the proposed exercise. We assume a theory of constitutional interpretation that first tells us to pay attention to certain "fixed points"; then helps us to "choose" or recognize some "fixed points" from our long legal history (say, take up Brown, discard Lochner); and then induces us to organize them in a certain way, or to derive from them other conclusions. In sum: the theory is the one that marks all the way from the beginning, not the one we choose or find at the end of the road. 

Through this brief review, I wanted to celebrate the publication of Cass Sunstein's How to Interpret the Constitution. This is a book that - on a personal level - reconciles me with an author that I have followed and admired during decades. Beyond the differences noted, I applaud what appears to be a "return to the sources" on the part of Sunstein. And I do so with the hope of encountering new works by the author, reflecting on constitutional law from a perspective committed to democracy, equality and social justice.

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.

BIBLIOGRAFIA

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