Constitutional Personae by Cass Sunstein

Source of book: Borrowed from the library

Most of the books I read are either part of my own library, or are off of a running list that I keep of books that friends suggest or that I read reviews of, or discover through other means. I have over 100 books on this queue, so some sit for a while before I get to them.

There are a few exceptions, however. Once in a really blue moon, I will be at the library to find another book, and I will glance at the “new to the library” display, and see something that catches my eye.

This book is one of those.

I’ve read a couple of books by Cass Sunstein, and found him to be a thoughtful writer. Both Nudge and Why Society Needs Dissent have been influential on my views regarding politics and society. Why Society Needs Dissent made my list of most influential books. Sunstein gets a bad rap from the Right Wing for some reason. I suspect that, more than anything, he won enmity simply by working for President Obama’s administration. Although, as my wife pointed out, these days anything that appears to even the playing field, even something as benign as his proposal in Nudge [link] to set defaults (such as pension contributions) in a way that inaction has good, rather than bad, results is anathema to the Right. In the case of this book, despite the fact that Sunstein advocates for a fairly conservative (in the literal sense) approach to constitutional law, he will undoubtedly be hated because he doesn’t toe a strictly orthodox line. 

This book is a look at the United States Supreme Court and the “personae” that justices throughout history have taken on. Sunstein lays out four different ones, and explains how they function in relation to each other. The four personae are “The Hero,” “The Soldier,” “The Minimalist,” and “The Mute.” Heroes are easy to understand. They are the ones who wish to issue broad and visionary opinions in furtherance of their views, usually in striking down legislation as a violation of the Constitution. Heroes exist, as the author points out, on both the left and the right. Soldiers are the opposite, advocating for upholding legislation (being a “good soldier”). Mutes are more rare, but are typically eager to avoid addressing questions they deem unnecessary. Minimalists aren’t exactly soldiers, but they do try to keep judicial opinions fairly narrow and incremental, rather than broad and revolutionary. Sunstein further breaks down minimalists into “Burkean” minimalists (who have respect for tradition) and “Rational” minimalists, who apply principles of reason in a minimalist fashion.

Sunstein notes that this is not a way to categorize individual justices, but rather the personae that the justices put on. Any given justice may well have a preferred personae, but will usually adopt the personae that he or she believes works best in any given case. Thus, a justice may act as the hero in one type of case, while adopting the soldier in another.

Of course, the role of the soldier is one that all justices must take on, at least during the confirmation process. After all, the point is to convince the Senate - the legislative branch - that the justice won’t be overturning their legislation particularly often. Sunstein notes that saying “I’ll just follow the law” is a bit disingenuous when it comes to the Supreme Court because “the law” is often vague or ambiguous, and “the law” of legislation isn’t exactly the same as “the law” of the Constitution.

In addition to laying out the personae, Sunstein makes an argument for his own preferred personae, the Burkean Minimalist. By “argument,” though, I should be clear. Sunstein is, first and foremost, a law professor. So his “argument” in favor of his position is really more of a look at all of the facets of all the arguments, and an expression of a “general enthusiasm for the Minimalist,” as he puts it.

Actually, this is one reason I like Sunstein’s writing. He is unafraid of addressing the other sides of the issues he submits, and he is always respectful and fair to the other side, even though he does prefer his own. It is this tendency that makes the vitriol against him puzzling. He works so hard to be fair-minded that you can’t hate him even when you disagree with him. But apparently to disagree is to hate in some circles these days.

Sunstein spends an entire chapter on Burkean Minimalism, explaining where it does and where it does not work. For example, he believes that on issues involving individual rights, Burkean Minimalism is not particularly helpful. Because the approach gives deference to tradition and current practices, it tends to work against recognition of important rights. For example, Burkean Minimalism would definitely not have overturned segregation. Since Edmund Burke’s reasoning was that established tradition and practices often represent practical wisdom and should therefore be given deference, one can see how this could be a problem in some cases. As Sunstein puts it, the “problem is that for some forms of discrimination, it is exceedingly difficult to argue that longstanding traditions reflect wisdom, rather than power and injustice.”

Another related objection to the Burkean assumption that tradition equals wisdom was raised by Madison, Jefferson, Pascal - and Jeremy Bentham. (Again, Sunstein wishes to give the other side its due.) The concept is fascinating to me. In essence, we tend to assume older people are wiser because they have more experience. In some cases, this is true. But in another sense, because human knowledge accumulates, a young person now may very well possess more wisdom than an older person of the past, because the young person has learned from the mistakes of the generations before him. For the Founding Fathers, this was important because they were “ignoring” the political forms of the past in favor of a new-fangled idea of representative democracy.

One reason I am intrigued by this argument is that the question of tradition versus innovation is ongoing in many facets of life. Certainly in the law. But also in politics, religion, science, and so on. There is a definite belief in many that the old ways are best, people were somehow “better” hundreds or thousands of years ago (despite all evidence to the contrary), and that everything would be better if we just went back to the old ways. As Bentham succinctly puts it, “the wisdom of the times called old” is “the wisdom of the cradle.” In the case of things like slavery and witch burning, it is pretty hard to argue with that.

Bentham also shares a sore point with me, which is “the reigning prejudice in favor of the dead” combined with the a pronounced tendency to disparage the present generation. (“Diss the Millennials”  is practically a national sport right now.)

Where Sunstein does thing that Minimalism is particularly effective is in cases involving Separation of Powers, as “tradition” usually does reflect a working arrangement that, well, works.

Sunstein also spends some time in this book looking at the question of unanimity. Prior to 1941, the Supreme Court rarely had dissents (at least by comparison). Instead, the court tried to give an appearance of unanimity, even if the individuals disagreed. That changed later, and now dissents are common - as are concurring opinions. Something fundamentally changed, although Sunstein can only suggest some possibilities as to exactly what happened and why.

What is easier to determine, though, is that one thing that is not true is that unanimous opinions are less controversial. It turns out that on issues that people have strong opinions about, they consider the court’s decision “legitimate” in direct proportion to whether it agrees with their own opinion. The size of the majority seems irrelevant. However, on lesser questions, the size does appear to matter, probably because on those questions, people are less likely to care deeply about the issue - or even understand it and care at all. Thus, a unanimous decision in that case would seem to signal that it is uncontroversial.

Also on this topic, I found Sunstein’s argument for “shallow” opinions (one which decides the case on less momentous arguments, rather than one based on broad sweeping conclusions) to be cogent. His theory is that if rulings are shallow, then they can more easily reassure the “losing” side that their concerns have been taken into account, and that “their own deepest commitments have not been ruled off limits.”

For what it is worth, this is why Minimalists tend to deplore Roe v. Wade, because it was so broad and sweeping that it essentially ruled a whole set of considerations out of the realm of consideration. (See, Sunstein isn’t nearly as leftie as the Rush Limbaughs of the world think…)

I saved the next bit for the last, even though it came first in the book. Sunstein argues persuasively that the personae are not the same thing as interpretive approaches. An “originalist” like Scalia can be a soldier when upholding a law that matches his view of what the founders intended, and a hero in overturning a law which he believes violates the original intent.

With this in mind, Sunstein explores a number of different approaches to Constitutional interpretation. I think I liked this section the best, because it is broadly applicable outside of Constitutional Law. Indeed, every single consideration that Sunstein raises in regard to the Constitution of the United States is also one that religious people like myself face in the interpretation of our own holy texts. (If we are honest, we have an even harder time, since the Constitution is at least in our language, and just over 200 years old, rather than far older, and in a foreign language.)

Let me start with this:

The problem is that in the legal context, there is nothing that interpretation “just is.” Among the reasonable alternatives, no approach to constitutional interpretation is mandatory. The idea of interpretation is a broad concept, and it can be understood in many different ways. We should see that idea as a kind of umbrella, covering many particular conceptions of what interpretation is. Any particular conception has to be defended, on the merits, as the best one; it cannot be adopted on the ground that it is entailed by the broad concept of interpretation.

If there is one thing I could convince my Evangelical and Right Wing friends of, it would be this. Theologian and author Peter Enns puts a similar thought into words in the Biblical context. 

[T]his issue is not about biblical authority. It’s about how the Bible is to be interpreted. It’s about hermeneutics. It’s always about hermeneutics. I know that in some circles “hermeneutics” is code for “let’s find a way to get out of the plain meaning of the text.” But even a so-called “plain” or “literal” reading of the Bible is a hermeneutic—an approach to interpretation.

Literalism is a hermeneutical decision (even if implicit) as much as any other approach, and so needs to be defended as much as any other. Literalism is not the default godly way to read the Bible that preserves biblical authority. It is not the “normal” way of reading the Bible that gets a free pass while all others must face the bar of judgment.

There is this bald assertion that one’s preferred interpretive lens (Originalism or Literalism) is the only possible way to interpret a text. Thump the Bible - or the Constitution, drop the mic, and walk away. But this is equally unhelpful in each situation. Interpretation and hermeneutics are not something that “just is.”

Just as one example: even “originalism” isn’t that simple. Is the “original meaning” what the author meant to say? Thought he meant to say? Or what a reader of that time would have thought the words meant? Those three may be different things entirely. And did the author mean the words to apply solely to the situations he envisioned? Or to other similar situations that he could not anticipate? Did the author intend that a broad concept should remain limited to its extent at the time it was written? Or to be used as a broad analogy in a rather differently constituted society?

Two ways this might work in modern cases, both dealing with individual rights:

In the first scenario, what should the meaning of the 14th Amendment Equal Protection clause be? Clearly, when it was written, segregation was a fact, but it has now been interpreted to forbid segregation. (See Brown v. Board of Education - a unanimous opinion, for what that is worth.) So, obviously, the writers didn’t intend to end segregation then and there. But did they also mean that “Equal Protection of the Law” would be limited to those exact situations which arose in the 1860s to the exclusion of all others? And what about the fact that “Equal Protection” may well have been understood by some or many readers back then to mean that laws apply equally to everyone - a “plain meaning” which would also apply today, and which would appear to forbid racially discriminatory laws. And then, what about discrimination against women? Is that okay, or does the spirit of “equal protection” apply here as well? So the argument would be between “originalism” in the sense of “what did the writers think when they wrote it” and “originalism” in the sense of “what was the spirit originally intended?”

In the second scenario, consider the 2nd Amendment. Does the right to bear arms apply to anything other than single shot muskets? The drafters were obviously unaware of machine guns, to say nothing of tanks and nuclear weapons. (Which are arms one could conceivably keep and bear.) Does one limit the right to the things that the writers knew and anticipated? As one can tell, this isn’t a “clear” document to interpret. In this case, the same issue arises. Do we go with what the writers “originally” had in mind, literally, or do we go with what we think might be the spirit? (And of course, does the spirit just extend to repeating handguns? Fully automatic weapons? Tanks? Nukes?) At this point, it is easy to see that “interpretation” isn’t just a black and white issue.

All of this applies doubly - one thousand times perhaps - to holy texts. Considering that we don’t even know what some words mean, it seems a bit arrogant to be sure that there is one interpretive approach that is the only legitimate one.

Sunstein makes a great point as well. He does not believe that any one interpretive approach is infallible and that one must often take outside factors into consideration.

If the consequences of sticking with [an approach] would be terrible, and if those consequences could be avoided with another approach, shouldn’t judges consider that other approach?

Indeed, if one’s approach to a document is causing harm by, say, condoning a second-class legal status for women, perhaps a different approach would be better. And yes, this particular problem has plagued both Constitutional Law and Christianity. An “originalist” approach in both cases has had the effect, not of enshrining the wisdom of the past, but of perpetuating the longstanding institutions of power and injustice. At that point, it may be time to approach the problem from a different angle.

In some ways, this book is going to appeal primarily to those of us who work in law, or at least care deeply about Constitutional Law and the dirty details of justice. On the other, Sunstein sheds some light on the psychology of the court, and the ways that who we - and the justices - are moulds the the way that the law develops in its attempt to be true to the foundational documents and do justice.