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

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Cass Sunstein publishes new material almost hourly, and I am not always impressed with his output. When he's good (Nudge), he's edgey, supremely confident, and worth a good deal of head-scratching. When he's bad, he can be a partisan suck-up (Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America). Most of the time, he serves up brilliant ideas, but half-baked. (Infotopia: How Many Minds Produce Knowledge).

But this is the book that Sunstein's been laying groundwork for with his last four or five. It's worth the wait. He applies the Condorcet Jury Theorem (recently popularized by Surowiecki's The Wisdom of Crowds) to constitutional jurisprudence, and he gets quite a bit of mileage out of it. This is the best "con law and economics" book since Hayek's Law, Legislation and Liberty, Volume 1: Rules and Order. And it's the single most original argument for creative progress in constitutional law in the last 50 years.

If there is a weakness, it's that he has gazed too long into the abyss of cognitive psychology, and come back with the power to mislead. Sunstein obsessively "frames" the debate with the heavy use of straw men. He invents, considers, and rejects three alternative modes of constitutional thinking he dubs "traditionalism," "populism," and "cosmopolitanism." This clever act of creative pigeonholing permits him to characterize the Scalia originalists as "populist radicals," even as he positions himself to the right of Anthony Kennedy (a latte-sipping, foreign-law-citing "cosmopolitan").

I find these faux-contrarian positions wildly, laughably implausible. I can't believe Cass has lost a moment's sleep worrying about America's constitutional sovereignty. But he seems to be suffering "loss aversion." He has chosen to ride the high horse of judicial minimalism until it dies, and then flog it some more. I think he needs new talking points, but the jury will decide...

This was not good. First, the subtitle "Why the Founding Document Doesn't Mean What It Meant Before" suggests that Sunstein puts forth an argument against Originalism. But rather than make that argument, he simply dismisses originalism saying that it "would make the constitutional system worse" and if "taken seriously, originalism would permit race and sex discrimination by the national government, sharply limit protection of speech and allow state governments to establish official churches." This is a gross misrepresentation of the Constitution since even someone with the most basic understanding of the document knows that it was never intended to be an an infinite list of what the federal government can NOT do, but rather enumerates those few and defined powers delegated to it by the sovereign states while everything else is reserved to the states or the people. Throughout the book, Sunstein builds upon this false premise with theoretical and thinly-veiled straw man scenarios that predictably collapse under his characterization of originalism. Having dismissed originalism, Sunstein goes on to describe different variations of a living constitution, not through constitutional amendments, but through an evolution of judicial activism and precedent (traditionalism), majority rules (populism), and foreign constitutional law (cosmopolitanism).

I was also disturbed by Sunstein's misrepresentation of Thomas Jefferson's views on the constitution in the book's Introduction, Jefferson's Revenge. As if Jefferson was all for a living constitution, Sunstein misleads the reader by inaccurately portraying Jefferson as an advocate of a liberal interpretation of the constitution who favored reaching beyond its original public meaning. This simply isn't true. If anything, Jefferson was an advocate for a constitutional convention for every generation, not to expand an existing document, but to purge it of previous generations' bloated government and encroachment on individual liberty. There are scores of quotes from the man himself supporting this, but maybe the most direct and clear is in his letter to John Cartwright in 1824. "We have not yet so far perfected our constitutions as to venture to make them unchangeable. But still, in their present state, we consider them not otherwise changeable than by the authority of the people on a special election of representatives for that purpose expressly. They are until then the lex legum." This is far from advocating liberal interpretation of the constitution. And to put to rest any idea that Jefferson was anything but an originalist, look no further than this excerpt from his 1823 letter to his supreme court nominee Justice William Johnson. "On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed."