Wednesday, January 16, 2008

Book review: Radicals in Robes

TitleRadicals in Robes: Why Extreme Right-Wing Courts are Wrong for America
AuthorCass R. Sunstein
Tagssupreme court, judicial theory, non-fiction, cass sunstein,
Your reviewSunstein describes four approaches to U.S. constitutional law: perfectionism, majoritarianism, minimalism, and fundamentalism. Perfectionism is the more liberal approach, following the text but also making decisions following their own views of freedom of the press, equal protection, etc. It was the main approach of the Warren Court.

Majoritarians believe that unless there has been a clear violation of the Constitution, the "courts should defer to the judgements of elected representatives." (p. xii). Oliver Wendall Holmes was a majoritarian, but there are few if any on the Supreme Court today.

The third approach is minimalism. Miinimalists rule narrowly, one issue at a time, rarely if ever making broad rulings with wide application.

Finally the last approach is fundamentalism. "in their view, the founding document must be interpreted to mean exactly what it meant at the time it was ratified". (p. xiii) "But some fundamentalists have not hesitated to betray their commitment to the original understanding when the historical evidence points to results they dislike. Their willingness to do so suggests that some of the time, they are working for a partisan ideology rather than law." (p. xiv) Clarence Thomas is the foremost of the fundamentalists, willing to write broad decisions that overturn precedent. Scalia is similar, but less willing to overturn precedent.

A summary, from chapter 10: "In the abstract, fundamentalism appears both principled and neutral. But too much of the time, fundamentalists offer an unmistakably partisan vision of the Constitution. Their Constitution casts serious doubts on affirmative action programs, gun control laws, restrictions on commercial advertising, environmental regulations, campaign finance reform, and laws that permit citizens to sue to enforce federal law. As many fundamentalists understand America's founding document, it raises doubts about the Environmental Protection Agency, the Occupational Safety and Health Administration, the Securities and Exchange Commission, the Federal Communications Commission, and many other federal agencies. It allows the President extraordinarily wide authority to wage war even at the expense of the most basic liberties. It contains no right of privacy. It allows the national government to discriminate on the basis of race. It permits states to benefit religious believers and perhaps even to establish churches. It imposes sharp limits on Congress's power to regulate interstate commerce and to enforce the guarantees of the Fourteenth Amendment. Most ambitiously, fundamentalists want to move in the direction of some Lost Constitution or the Constitution in Exile - the document as it was understood in the distant past. " (p. 243)

"Fundamentalists claim to embrace originilism, and to their credit, some of their conclusions do fit well with the original understanding of the Constitution. But they write as if their approach is the only legitimate approach to interpretation - as if those who reject the original understanding, and refuse to be bound by the views of those long dead, are refusing to do law at all. This is a myth. The Constitution doesn't call for fundamentalism. Nor have fundamentalists confronted the serious conceptual difficulties with following the 'original understanding' of a document that was written centuries ago. And they have been evasive rather than candid about the radicalism of their approach, which would threaten to undo much of the fabric of our democracy and our rights." (p. 244)

Sunstein advocates a minimalist approach, which produces change over time but slowly.

I can't say I understand all the details of Sunstein's arguments, but it is a surprisingly readable book for the layperson, and on a really important topic.
PublicationBasic Books (2005), Hardcover, 281 pages
Publication date2005

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