According to legal scholar Cass Sunstein, it is not enough to label judges as "liberal" or "conservative" or any other ideological stripe; one must also take into account their approach to constitutional interpretation. In Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America
, he outlines four approaches that have long dominated constitutional debate--perfectionism, majoritarianism, minimalism, and fundamentalism--and argues for minimalism and against fundamentalism (perfectionism and majoritarianism are given less attention since they have largely fallen out of favor in recent decades). Minimalists believe in narrow, incremental decisions rather than broad rulings. They respect precedent, recognize the limited role of the judiciary, and "seek outcomes on which people with varying views can agree." Fundamentalists believe the Constitution must be interpreted according to "original understanding," or precisely what was meant at the time of ratification. "In the abstract, fundamentalism appears both principled and neutral. But too much of the time, fundamentalists offer an unmistakably partisan vision of the Constitution," he asserts. Though he acknowledges that fundamentalism can sometimes be reasonable, the risks of abuse are too great, leading him to conclude that the approach is "destructive and pernicious" because it leads to less freedom for Americans. In practice, for instance, it could ban the sale of contraceptives, invalidate most environmental regulations, allow discrimination on the basis of race and sex, allow states to establish official churches, and overturn even modest gun control laws.
Though they claim a devotion to history, Sunstein believes fundamentalists are "seeking to produce a federal judiciary that operates as an arm of the political branches." In making this point, Sunstein shows how "judicial activism" by extreme conservative judges has been on the rise since the Reagan administration, moving the Supreme Court hard to the right in the process. He discusses the implications of this shift on issues such as the right to privacy, marriage, affirmative action, national security, the separation of powers, gun control, and religion in public life, among others. In Radicals in Robes, Sunstein skillfully outlines complex constitutional issues in clear language, making this a useful and thought-provoking book for lay readers and legal experts alike. --Shawn Carkonen
From Publishers Weekly
In this timely and keen analysis of how judges interpret the Constitution today, Sunstein, a University of Chicago law professor and New Republic
contributor, espouses what he calls a "minimalist" approach that respects precedent and takes only small-scale steps forward, and lashes out at the "fundamentalism" practiced by extreme conservative judges. Legal fundamentalists profess to base their interpretations on the meanings ascribed to the Constitution by the original ratifiers. But in many respects, Sunstein says, fundamentalists ignore, or misread, the history they claim to venerate. Further, he says many fundamentalist positions would undermine liberties Americans have come to value—rights that one fundamentalist judge, offering the example of the right to privacy, says were created out of whole cloth by the Supreme Court. For Sunstein, capitulation to the fundamentalists could lead to state (but not federal) establishment of religion, to the elimination of a protected right to privacy and to invalidation of most environmental regulations. We should be skeptical, the author insists, when political ideology seems to dictate judges' constitutional doctrine. This compressed book covers all the hot-button constitutional issues in 10 short, plainly written chapters. Americans monitoring the upcoming Senate deliberations over Bush's nomination of John Roberts to the Supreme Court will want to bear in mind the arguments Sunstein so trenchantly presents.
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