Cass Sunstein Reviews Richard Epstein’s The Classical Liberal Constitution

At the New Republic, Cass Sunstein reviews Richard Epstein’s new book on the Constitution. I have a mixed reaction to Sunstein’s review, agreeing with parts but disagreeing with more of it.

1. Originalism. Sunstein argues that Epstein’s book is not really originalism, because Epstein uses classical liberalism to interpret constitutional provisions and that is not the right way of determining the original meaning. Here I agree with Sunstein, and have said so in various settings.

But what Sunstein omits here is that Epstein’s vision of the Constitution is quite a bit closer to the original meaning than either the New Deal or the Warren Court visions, which Sunstein seems to recommend. Thus, if we should follow the original meaning, Epstein’s view is to be preferred to our constitutional law today which is influenced largely by the New Deal and Warrent Court visions.

2. The Tea Party Constitutionalist. Sunstein portrays Epstein’s book as the theory of the Tea Party. While there is an element of truth to this, there is also much that is misleading. First, Sunstein does not really know what Tea Partiers believe in detail about the Constitution. For all he knows, they may be originalists who believe a more orthodox version of the Constitution’s original meaning. Moreover, as Sunstein recognizes, Epstein is an independent thinker, who does not play to the crowd.

3. Epstein’s Moral Reading. Sunstein argues that Epstein, rather than providing an originalist interpretation of the Constitution, is instead offering a moral reading in the tradition of Ronald Dworkin. I have raised this possibility myself, so I have some sympathy with it. But I think Epstein’s moral reading is far more attractive than Sunstein does. I agree with classical liberalism and I believe that the original meaning of Constitution was “relatively” classical liberal. If I were not an originalist, I would probably defend something like Epstein’s view of the Constitution. Sunstein can attempt to dismiss it, but I believe that it is very persuasive.

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Was Justice Black the Most Overrated Justice? No way!

Cass Sunstein has a column arguing that Justice Hugo Black “who served from 1937 to 1971, is the court’s most overrated justice.” I strongly disagree with Sunstein (hardly the first time); I think Black is one of the best justices who served during the middle of the 20th century.

Sunstein likes Black’s generally liberal decisions, but he is critical of Black’s methodology of textualism and originalism. Sunstein begins with Black’s textualism, writing:

Too much of the time, Black claimed that the text of the Constitution required a particular result, when it did nothing of the kind. He famously defended his free speech absolutism by noting that the First Amendment “provides, in simple words, that ‘Congress shall make no law … abridging the freedom of speech, or of the press.’ I read ‘no law … abridging’ to mean no law abridging.”

But Sunstein rightly points out that the key question is what “freedom of speech” means and many laws that interfere with speech may not interfere with freedom of speech.

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Fat, Stupid and in Debt

In the New York Review of Books, Cass Sunstein reviews Sarah Conly’s Against Autonomy: Justifying Coercive Paternalism, just out from Cambridge University Press. I haven’t read the book, and I do not intend to do so. I already own two other books, and this one is $95—the equivalent of two cartons Camel Filters.(Not even close, in terms of marginal utility.) In contrast, Professor Sunstein’s laudatory review arrived for free, via internet, and I have read it with great profit.

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Let the Sunstein In

FDRWatershed election presidents such as Abraham Lincoln and Franklin Roosevelt do not simply happen on election day. The significance of the election is played out in speeches that illuminate and in policy that transforms. Whether President Obama is a critical election president is yet to be determined, but his references to the Declaration and the Constitution in his second inaugural address make clear his ambition to change our understanding of who we are as a people.

Does it come as a surprise that we have been living under a new Constitution anyway, a “Second Bill of Rights” that has devoured the original document? According to Harvard Law professor and former high-ranking Obama Administration official Cass Sunstein, it’s like discovering we’ve been speaking prose all our lives. In a recent op-ed Sunstein accurately observes that President Obama’s Second Inaugural (not to mention his major actions) faithfully follows Franklin Roosevelt, who first called for a “Second Bill of Rights” in his 1944 State of the Union Address.

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Cass Sunstein on Regulatory Takings

I have been doing a series of responses to Cass Sunstein’s criticism of the originalist Supreme Court Justices: See these posts on affirmative action, and commercial speech.  This post discusses Sunstein’s criticism of regulatory takings:

This is far from the only area in which they have been doing so. For example, many conservatives believe in strong protection of property rights. They want courts to use the Fifth Amendment’s takings clause to strike down regulations that interfere with property rights — even though some leading historical accounts suggest that when originally ratified, the Fifth Amendment was limited to actual physical takings of property, and didn’t restrict regulation at all. Here too, Justices Scalia and Thomas have made no serious inquiry into the original understanding.

I agree with Sunstein’s position here more than I have in my previous posts.  I agree that Scalia and Thomas have not made much of an inquiry into the original meaning here.  I also agree with that some leading historical accounts suggest the original Fifth Amendment did not restrict regulatory takings.

But there is more to the matter than this.  First, while I agree that the Fifth Amendment passed in 1791 did not cover regulatory takings, the 14th Amendment passed in 1868 may have.  I present arguments for this conclusion here.  People have recognized that the individual rights applied against the states after the Civil War had a different content than those that existing in 1791.  The 14th Amendment enactors also had a more individual rights understanding of government than the enactors of the original Bill of Rights.  Further, there is strong evidence that the Takings Clause had become much more embedded into American traditions by 1868 and some evidence that it extended to at least some regulatory takings.

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Cass Sunstein and the Originalist Case for Commercial Speech Protection

In my last post, I criticized Cass Sunstein’s originalist case against the colorblind constitution.  Here I discuss Sunstein’s criticism of Scalia and Thomas for their views on commercial speech.  Sunstein writes:

Conservatives tend to believe the First Amendment requires courts to invalidate many restrictions on commercial advertising. But until 1976, the Supreme Court didn’t believe that the First Amendment protected commercial advertising at all. It would take a lot of work to establish that the constitutional protection that some would give to commercial advertising can be traced to the original understanding in 1791.

This is quick, too quick.  To begin with, the First Amendment did not have much action until the 20th Century (in part because it was not applied against the states and in part because it was interpreted narrowly).  Once it was applied, we were in a world dominated by progressive and New Deal ideas.  Thus, it would be no surprise that these eras sought to draw a significant distinction between political and commercial speech.  (And it is not that surprising that Justice Scalia is less receptive to commercial speech protection than Justice Thomas is, since Scalia seems more influenced by the neo-progressive view that was dominant when he went to law school.)

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Cass Sunstein on the Constitutionality of Affirmative Action

Cass Sunstein has a post criticizing originalists Justice Scalia and Thomas for the alleged inconsistency of their opinions with originalism.  The main focus of his article is affirmative action, about which he argues that the history of the Fourteenth Amendment “strongly” supports the constitutionality of affirmative action.  But he also raises concerns about other issues, such as commercial speech and the regulatory takings.  In this post, I will discuss affirmative action; in a future post, I will address commercial speech and regulatory takings.

Sunstein’s argument about affirmative action is taken from his earlier book Radicals in Robes.  Yet, his argument here is no more persuasive than it was in the book.  Two basic points.  First, Sunstein argues that the Freedmen’s Bureau Act of 1866 “specifically authorized the use of federal funds to provide educational and other benefits to African-Americans.”  But this is misleading at best.  This Act provided benefits to war refugees (who could be white or black) and former slaves.  It is true that all former slaves were black, but not all blacks were former slaves.  This legislation was focused not on a racial category, but on a category (being former slaves) that was defined by past behavior.

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Missing the Significance of Cass Sunstein

The news that Cass Sunstein returns to Harvard Law School from his position as policy chief at the Office of Management and Budget provoked a divided response. On his policy legacy, the left and right clashed, with partisans both attacking and praising his policies. For many Beltway leftists Sunstein had done “untold damage” by the number of health and safety rules his office killed. (See Reagan biographer Steven Hayward for his gleeful observations.)

This mirrors the reaction of conservative legal scholars I had asked years ago about his work at OMB, which they faintly praise.  

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