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The Partial Constitution [Paperback]

Cass R. Sunstein
4.5 out of 5 stars  See all reviews (2 customer reviews)

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Book Description

September 18, 1998 067465479X 978-0674654792 Reissue

American constitutional law is at a crossroads. In a major new interpretation of the Constitution, Cass Sunstein offers a clear account of our present dilemmas and shows where we might go from here.

As it is currently interpreted, the Constitution is partial, Sunstein asserts. It is, first of all, biased. Contemporary constitutional law treats the status quo as neutral and just, and any departure as necessarily partisan. But when the status quo is neither neutral nor just, Sunstein argues, reasoning of this sort produces injustice. The Constitution is also partial in another sense: its meaning has come to be identified solely with the decisions of the Supreme Court. This was not always the case, as Sunstein demonstrates; nor was it the intention of the country's founders. Instead, the Constitution often served as a catalyst for public deliberation about its general terms and aspirations--and Sunstein makes a strong case for reviving this broader understanding of the Constitution's role.

In light of this analysis, Sunstein proposes solutions to some of the most hotly disputed issues of our time, including affirmative action, sex discrimination, pornography, "hate speech," and government funding of religious schools and the arts. In an especially striking argument, he claims that the equal protection clause of the Fourteenth Amendment--not the right to privacy--protects a woman's right to choose abortion. Sunstein connects these and other debates to the Constitution's historic commitment to public deliberation among political equalsand in doing so, he reconceives many of our most basic constitutional rights, such as free speech and equality under law. He urges that public deliberation about the meaning of the Constitution in turn be freed from a principle of neutrality based on the status quo. His work points to a historically sound but fundamentally new understanding of the American constitutional process as an exercise in deliberative democracy.

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Editorial Reviews


Sunstein argues that contemporary constitutional law is 'partial' because its meaning has come to be identified solely with decisions of the Supreme Court and that it is biased because it presumes that the status quo is neutral and just and that any departure is necessarily partisan. Rejecting these characteristics, he conceives basic rights such as freedom of speech, equal protection, and privacy, and proposes new solutions to issues including abortion, affirmative action, sex discrimination, pornography, 'hate speech,' and government funding of religious schools and the arts. (Law & Social Inquiry)

Essential reading for anyone who wants to understand the kinds of issues that are dominating the contemporary constitutional agenda and to understand analytical approaches that will become more influential as inevitable generational transformations continue. And, depending on the contingencies of presidential decision making (and senatorial acquiesence), it may be essential reading for anyone trying to predict the future course of judicial construction of the Constitution. (Sanford Levinson New Republic)

Taking on the philosophical underpinnings of democracy as well as the ticklish questions of pornography, abortion, welfare, free speech, etc., this book calls all those involved in the American political and judicial processes to a new understanding of the Constitution. (Washington Post Book World)

Sunstein presents a major, new interpretation of the Constitution and considers the bias and partial results of its present interpretation in a lively, involving survey blending history, politics and legal considerations. (Bookwatch)

Cass Sunstein has convincingly shown that we could reorient our thinking about the Constitution without doing undue violence to our basic institutions or to our constitutional history. (Robin L. West Michigan Law Review)

Sunstein has produced an essay that is provocative in the best sense of that term; it provokes fresh insight, new ways of thinking about matters that have become dull in the hands of lesser lights. He constructs a compelling general theory of constitional interpretation, according to which 'naked preferences' of vested interests must give way to public values in our 'republic of reasons'...He follows his own canon of intelligibility, writing deftly for those familiar with the methods of constitutional interpretation but rendering these methods accessible to readers who may be complete neophytes. (Edward McGlynn Gaffney, Jr. Commonweal)

Professor Sunstein has written a book that is remarkable in its intellectual ballast...The Partial Constitution offers a sensitive and evocative contribution that will serve as a foundational reference point in the need to forge a new paradigm of constitutional scholarship. (Gregg Ivers Law and Politics Book Review)

Cass Sunstein's The Partial Constitution occupies a place among the finest work in recent constitutional theory. It unobtrusively melds political philosophy and economics into its assessment and criticisms of constitutional cases and trends. (Samuel Freeman Law and Philosophy)

This is a book that cries out for reading by anyone interested in the role of law and social change, or for that matter, anyone moved enough by the idea of democracy to vote. (Virginia Quarterly Review)

Sunstein gives new life to the oldest idea in the book of social criticism: the complaint that we mistakenly believe our current practices are somehow neutral or natural. What's remarkable is Sunstein's ability to explore its intricacies, to visit a wonderfully wide range of Supreme Court decisions and show in fine-grained detail just how they make that mistake. This book offers an invigorating portrait of American constitutional history and theory. It deserves a very wide readership indeed. (Don Herzog University of Michigan)

The Partial Constitution may well set the intellectual agenda for constitutional scholarship in this decade. It presents a powerful argument for reconceptualizing constitutional law. On topics ranging from cross-burning to abortion, author>Sunstein/author offers a formidable challenge to conventional constitutional analysis. (Daniel A. Farber University of Minnesota Law School)

Sunstein reorients liberalism away from an undifferentiated distrust of government and toward a more sensitive awareness of desirable uses and misuses of the governmental power that is an inevitable part of modern society. The book thus constitutes a powerful attack not only on many contemporary constitutional understandings about topics such as freedom of speech, freedom of the press, due process, equal protection, and the state action principle, but also on some of the central tenets of classical and modern liberalism. (Frederick Schauer Kennedy School, Harvard University)

Sunstein sheds light on contemporary issues of free speech, reproductive freedoms, government subsidies of art and education, and at the same time he launches a profound invitation to shift constitutional debate away from preoccupation with courts and toward arenas of democratic participation. Any serious scholar of the Constitution, and indeed, any serious citizen, should study this important book. (Martha Minow Harvard Law School)

About the Author

Cass R. Sunstein is Robert Walmsley University Professor and Felix Frankfurter Professor of Law at Harvard University.

Product Details

  • Paperback: 428 pages
  • Publisher: Harvard University Press; Reissue edition (September 18, 1998)
  • Language: English
  • ISBN-10: 067465479X
  • ISBN-13: 978-0674654792
  • Product Dimensions: 1 x 6 x 9.1 inches
  • Shipping Weight: 1.2 pounds (View shipping rates and policies)
  • Average Customer Review: 4.5 out of 5 stars  See all reviews (2 customer reviews)
  • Amazon Best Sellers Rank: #1,450,542 in Books (See Top 100 in Books)

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3 of 4 people found the following review helpful
5.0 out of 5 stars A powerful contribution do constitucional doctrine June 19, 2003
When I was in my first years teaching constitutional law and writing a book on church and state in Portugal this book was perhaps the most important I read. The insights of Cass Sunstein helped to build a more persuasive case for religions freedom and equality in Portugal. Cass Sunstein addresses the constitutional question of determining the right baselines in those cases in which a Constitution confronts historically consolidated situations of inequality. In this cases, one must remember that the historical process is not necessarily a legitimate one. For instance (and this is where Sunstein'work was important to me), in Portugal the Catholic Church became the dominant religion, not by means of gentle persuasion in a free marketplace of ideas, but through coercion, persecution and discrimination. This means that the search for the right baseline for treating equally the different religious groups in contemporary Portugal cannot start with the acritical acceptance of the current situation of fact. If a Constitution accepts reality as it is, without any concern for how this reality came to be, this constitution will turn out to be a partial constitution. Much more could be said about it, but my point is that Sunstein's argument, developed trough many topics that have nothing to do with church and state problems, in fact helped to shape the current debate on church and state relations in Portugal, by focusing on the ilegitimate ways in which the dominant religion became so dominant and, by that, by allocating more theoretic and normative resources to the protection of religious minorities. After reading this book I've always tried to read everything I can from Sunstein. He is a great professor even when ocasionally I don't agree with him.
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Cass Sunstein's The Partial Constitution presents an interesting case for holding judicial impartiality as the overarching norm for judicial review. He first shows that judges should shouldn't necessarily refer to the status quo as the appropriate baseline because it is the reflection of prior governmental and societal that might not have been appropriate. His impartiality framework tries to input more substance into the norms of review than the neutrality standard commonly floating around academia in the 1950s and 60s. Overall, a useful contribution to constitutional theory.
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