Wednesday, January 26, 2005

On Focusing and Entrenchment -- Post by Cass Sunstein

After some helpful talks with interested others, here are a few thoughts on the Constitution in 2020. First: It is important to be clear on what is meant by "the Constitution." That idea could of course be limited to what is technically part of constitutional law as the Supreme Court understands it. Much more ambitiously, It could include anything deemed "constitutive" of national commitments and principles. Somewhat less ambitiously, it could include any proposal for what might be taken to be part of constitutional understandings -- as in, for example, some claims about the need for social and economic rights, and some claims about the real meaning of citizenship.

Tentatively, I think that there might be real advantages in focussing primary attention on the first and narrowest alternative -- the likely content and transformation of constitutional law as it develops from the Supreme Court. There's a lot more to do, of course, but a risk with the second and third alternatives is that they lose our focus, and turn into a more general inquiry into what liberals, the left, or the non-right should like or should be -- which isn't our comparative advantage, at least not for most of us.

Second: For the Supreme Court in 2020, a plausible goal, it seems to me, is to move in the general direction set by James Bradley Thayer -- to fend off efforts to entrench certain views associated with the extreme wing of the Republican Party. Jack Balkin's post on the future of the free speech principle seems to me to set exactly the right tone for us. If Congress wants to loosen restrictions on commercial advertising, fine; but the Supreme Court shouldn't constitutionalize this. More generally: There is a looming approach, which we might call Fundamentalist and which is captured in the idea of the Constitution in Exile, that would strike down affirmative action programs and campaign finance laws, reinvigorate the takings clause and the nondelegation doctrine, and endanger civil rights statutes on federalism grounds. These initiatives should be resisted as an effort to constitutionalize a contentious political program.

At the same time, it should be agreed that Roe v. Wade, and even Brown, are not the best models for future constitutional development -- Roe because reasonable people oppose it, Brown because that kind of aggressive judicial behavior is, and should be, rare. The best constitutional models, on this view, are West Coast Hotel, NLRB v. Jones & Laughlin Steel, and (maybe above all) Katzenbach v. Morgan, rather than Roe and Lawrence. The worst constitutional models, on this view, are Dred Scott and Boerne and Morrison, not Hardwick and Plessy. An anti-entrenchment principle, writ large, might help to orient the resulting constitutional understanding.

Here's another way to get at this. In the last decades a major fight, within the Court, has been between the Fundamentalists and the Minimalists (who have no broad agenda and who want to take small steps, not unified by any big agenda). In academic circles, these two camps are often challenged by a third group -- the Perfectionists, who want to make the Constitution the best it can be. Inspired by the Warren Court, many liberal academics have endorsed Perfectionism. Increasingly, though, many other people have become interested in a fourth approach -- Nonpartisan Restraint, as favored by Thayer and more recently by Adrian Vermeule, Jeremy Waldron, and Mark Tushnet. I am suggesting a negative program: A rejection of Perfectionism and Fundamentalism. I am also suggesting a positive program: An interest in a kind of Minimalism that leans toward Nonpartisan Restraint. (Of course we are speaking here of tendencies rather than simple, discrete categories.)

Is there any room for judicial invalidations, under this approach? The answer is: A limited one. First: Clear statement principles, requiring clear congressional authorization for intrusions on constitutionally protected interests. (Kent v. Dulles is a good model here.) Second: As Ely and others have elaborated, the anti-entrenchment principle itself has a positive, anti-Thayer side, especially in the domain of political speech and the franchise. Self-government comes with its own internal morality. (In addition, unjustified imprisonment is a prime concern for minimalists.) But because of the risk of judicial error, the Constitution in 2020 should be expected to be extremely cautious about interposing these ideas (as some of Ely's followers would like) as a kind of liberal analogue to the Constitution in Exile. That liberal analogue is a political program, not a constitutional one in the sense in which I am using it here.

The major goal of these general thoughts is to suggest the value of opening up a wide range of issues for political determination, free of judges, subject only to a "core" of judicially-enforced safeguards. Of course we can disagree about what that core might contain.

-- Cass Sunstein