In his most recent column, Harvard Law Professor Cass Sunstein criticizes originalism: But originalism is just one of many possible approaches to the Constitution. If it is taken seriously, there is a good argument that it would produce results that most Americans would despise -- and that any Trump nominee should be asked about. For example, originalism could easily lead to the following conclusions: States can ban the purchase and sale of contraceptives. The federal government can discriminate on the basis of race -- for example, by banning African Americans from serving in the armed forces, or by mandating racial segregation in the D.C.…
“You must be the best judge of your own happiness.”
Jane Austen said that, in Emma, but the statement is also a keystone principle of modern microeconomic theory, and it provides the epistemic foundation that makes benefit-cost analysis possible. The only way to know people’s preferences is observe the choices that they themselves freely make; all inferences about the “public” interest must begin there.
In a recent post, I discussed how Cass Sunstein argued, with the aid of the Star Wars saga, that delegation to the executive could be dangerous to democracy. While Posner and Vermeule contend that democracy favors delegation, because the democratic legislature has chosen to delegate, Sunstein notes that delegation can lead to the end of democracy, as it allows the executive to permanently displace the legislature. This was the case with Emperor Palpatine and with Adolph Hitler, both of whom received delegations of authority that they used to rule and never allowed the legislature to take back the authority.
Sunstein notes that George Lucas, the principal author of Star Wars, had analyzed the declines of democracies. According to Lucas, “You sort of see these recurring themes where a democracy turns itself into a dictatorship, and it always seems to happen kind of in the same way, with the same kind of issues, and threats from the outside, needing more control. A democratic body, a senate, not being able to function properly because everybody’s squabbling, there’s corruption.”
Over at the Volokh Conspiracy, Cass Sunstein has been blogging on his new book on the Star Wars movies. He loves them and finds a variety of things to say about them that are more serious than Star Wars. One post is about why success is so hard to predict, another is about the hypothetical writers behind texts, and a third is about the separation of powers. It is hard to tell without reading the book if Sunstein saw all of this in Start Wars or just loved the movies so much, that he tried hard to find interesting things to say about them.
Will Baude, another law professor, reviews Sunstein’s new book in the New Rambler. Baude’s main concern is that the producers of the new movie, the Force Awakens, announced that they would ignoring the large canon of books that have been written about Star Wars and that George Lucas always followed. This might seem like a minor thing to most movie viewers, but Baude is on strong ground in noting the importance of “world building” in the sci fi/fantasy world and how a large number of books can powerfully develop such a world.
My own objection to the Force Awakens is that it was essentially a remake of the first movie. It shows the artistic bankruptcy of modern movie making. To watch the best art on film these days, one should turn to shows on HBO and Cable TV. That is where the creativity. Baude and I agree that the new movie should have told a different story about a different part of the Star Wars universe. Of course, the producers would have probably made less money that way, which helps to explain why so many movies suck these days.
In an essay forthcoming for the Harvard Law Review, Cass Sunstein argues that Justice Antonin Scalia was in many important opinions a practitioner of living constitutionalism, that is someone who believes “the meaning of the Constitution evolves over time.” This claim is contrary to the received wisdom about Scalia. But it is consistent with a long-term project of the left—to deny that originalism is distinct either conceptually or in practice from living constitutionalism and thus to remove a barrier to the progressive transformation of the United States.
But Sunstein’s arguments are weak. First, he contends that some of Scalia’s opinions do not rely on the original meaning of provisions. But he has to acknowledge Scalia’s own response to these complaints: that as a judge he also has some duty to follow precedent. And applying precedent under neutral rules is emphatically not inconsistent with originalism. Analytically, precedent generally concerns the adjudication of the Constitution, not its meaning. Moreover, as Michael Rappaport and I have argued, the original Constitution contemplates the application of precedent.
Sunstein then downplays the full-throated originalism of District of Columbia v. Heller’s holding in favor of an individual right to hold arms at home. First, he quibbles that an originalist should have to show that the Second Amendment reference to “arms” was not limited to the firearms at the Founding. Scalia dismissed this argument as almost frivolous, as indeed it is even as matter of originalism.
Cass Sunstein is among the country’s foremost legal scholars, distinguished by both his prodigious output and an interdisciplinary approach that draws on the insights of behavioral psychology, economics, and social science research. In his latest book, Constitutional Personae: Heroes, Soldiers, Minimalists, and Mutes, he gives us an engaging study of jurisprudential comportment that classifies judges into the four groups of the subtitle.
At the beginning of this term of the Supreme Court, Cass Sunstein has praised judicial minimalism. Professor Sunstein argues that the justices should decide cases as narrowly as possible: “Minimalists . . . insist on small steps and narrow, unambitious rulings. They want to resolve the specific problem at hand, but without pronouncing broadly on liberty or equality, or on the system of checks and balances.”
So described, minimalism is the antithesis of a principled jurisprudence. First, minimalism does not offer a method for discerning the Constitution’s meaning. One does not need to be an originalist who believes that the meaning of the Constitution is fixed at the time it was enacted to recognize that an interpretive theory has to give account of how it is following the meaning of the Constitution. It is that meaning which should govern the case, and the relevant principles may be either broad or narrow depending on the meaning. For instance, if one follows the original meaning that the term “session” in the Recess Appointments Clause is limited to the intersession of Congress, the holding will necessarily rule out recess appointments in all cases but appointments made at the intersession.
Second, minimalism is incompatible with the rule of law. Deciding cases based on their peculiar facts gives little guidance to citizens as to what their rights and obligations are. Indeed, the reductio ad absurdum of minimalism is to decide the case of A v. B for A or B without giving any reasons at all: that approach surely resolves the case by making as little law as possible!
Cass Sunstein has offered a new solution to advance good governance in a time of partisanship—what he terms an age of “partyism.” Because a partisan world leads to gridlock in Congress, he suggests that executive agencies should continue to be empowered with substantial latitude to interpret their own statutes. Indeed, Professor Sunstein argues that agencies should gain a “bit more” discretion to construe existing statutes since Congress will not be doing much updating.
Michael Greve offered his own excellent demurral to Professor Sunstein’s solution. Here are two additional points of critique. First, empowering agencies is not neutral with respect to partisanship because bureaucrats lean to the left. Second, empowering agencies is not neutral as an ideological matter. The progressive agenda itself needs substantial discretion to continue the effectiveness and political endurance of much centralized regulation. In contrast, conservatives and libertarians are more sympathetic to market and other forms of decentralized order that will take hold even if federal regulation cannot be updated.
There is substantial evidence to support the first point that most federal employees lean to the left of Republicans.
Professor Cass R. Sunstein has unearthed a new –ism: partyism, meaning an animus or aversive reaction to someone based solely on party membership. As in: “I don’t care if people think I’m a racist or a child molester. But I’d die if they thought I’m a Democrat.” (I think Ann Coulter said that long ago. If she didn’t, she certainly could have.) Partyism, Professor Sunstein writes, is on the rise, and it contributes to political gridlock.