In today’s Boston Globe Mickey Edwards reviews Cass Sunstein’s latest book A Constitution of Many Minds. Though I haven’t read the book, Edwards’ rather snippy and ill-informed review calls for some comments.
If “A Constitution of Many Minds” reveals anything, it is that its author may teach about constitutionalism but he is at heart a political philosopher.
Is one to infer that on Edwards’ view this counts against Sunstein? If so, that would be perverse. The Federalist is deeply philosophical deriving many ideas from Locke and the novel circumstances of the emerging American republic.
Sunstein sees the law not as something that is but as something to be divined, in the first case by considering what is “traditional,” in the second through a populist lens, and in the third as a cosmopolitan, a man of the world. In Sunstein’s view, the Constitution is not law but more like a suggestion, which we are free to ponder in the light of our own preferences either as to outcome or method of deduction.
Two points. One is never free to arbitrarily ponder – an interpretation has to be plausible and still must answer to some epistemic standards. Second, no-one in these contexts “deduces” anything. One enters into a “flow of sympathy” and makes inferences that are at best probabilistic.
We thus find ourselves in these pages weighing not what the Constitution itself actually permits or prohibits, but such questions as what Edmund Burke, Jeremy Bentham, and Friedrich Hayek, none of them American and none of them constitutional scholars, might propose.
Is he suggesting a policy of protectionism in the world of ideas and the life of the mind? That would be preposterous. These first order thinkers have a great deal to bring to constitutional scholarship. Constitutional scholars worth their salt are philosophically inclined – it is a philosophical notion!! This is as true for modern writers such as Dicey, Hart, Raz (non-Americans I might add) and classic writers such as Locke and Montesquieu.
Rather he assumes that it is the courts’ role to determine what, in the light of modern standards, should have been meant. He does not defend that view; he simply takes it for granted.
This is ill-articulated. No-one can ever make a claim for what it should have meant, cast in stone for all time. This would be fundamentalism and foundationalism as its vulgar worst. Even religious scripture is amenable to interpretation for new contexts. If a text doesn’t have the seeds for its own relevance down the line, then it probably doesn’t embody any worthwhile wisdom and is dead on the page.
The problem with Sunstein’s approach is that it would subject us to a government of caprice.
Dynamicism does not entail arbitrariness. One is always dealing with a reflective tradition, not an inert pattern of habitual behavior.
Sunstein is particularly fond of the Condorcet Jury Theorem. The CJT holds that if one assumes that on any question each person in the pool of respondents will have a 50 percent or higher chance of being right, the collective judgment of the group as a whole will be much more nearly right than that of any individual participant. Sunstein finds this a fine argument for interpreting the Constitution in accordance with the prevailing public will. But who, or what, defines what is right? That’s a special concern in a nation with a Constitution that allows the majority to choose its governors but quite rigorously protects the rights of the minority against the majority will.
In matters of collective intentionality Sunstein is not deep – he ain’t no Christian List! But he is not wrong either. He is a clever guy: his legendary industriousness doesn’t show him off at his best. But if one is playing the public intellectual card, clever is viewed as coextensive with deep. But discussion of this is not salient to the issues at hand.
But it’s a book for a theoretical study of political philosophy, not for a serious consideration of how judges ought to act in a society governed by a Constitution with a purpose (not only to empower government but to constrain it; to give voice to the people but within limits).
The notions of power, authority, sovereignty, law, justice, equality, rights, property, freedom, democracy, and public interest are philosophical. There seems to be a tension in Edwards’ demands. What’s the point of having judges if all one has to do is to tick off, much like a recipe, whether something meets constitutional propriety or not? The USA is not the USA of 50 years ago, it is not the USA of 150 years ago – but it is still recognizably the USA, displaying its constitutional virtues (and failings). Neither a true conservative nor a true liberal could not accept Edwards’ bloodless procrusteanism.