Vol. 3 No. 9 (September, 1993) pp. 89-92
THE PARTIAL CONSTITUTION by Cass R. Sunstein. Cambridge, MA:
Harvard University Press, 1993. 415 pp.
Reviewed by Gregg Ivers, American University
In October 1991, I experienced the thrill of watching the
baseball team I had grown up with, the Atlanta Braves, play in
the World Series. Not to sound ungrateful, but the excitement of
the moment was tempered by the conditions under which I had to
watch the two games I attended. No, I was not bothered or
distracted by the constant chanting that accompanied the
trademark expression of Atlanta fans, the notorious Tomahawk
Chop. Had I been fortunate enough to attend the Series in
Atlanta, I would have enthusiastically joined in. Instead, I
watched the Braves in what must be the worst place in the entire
world in which to play baseball that has ever been built -- the
Metrodome in Minneapolis, home to the Minnesota Twins. The Twins
won the Series in seven games. But I will always contend that had
the Twins had to play real baseball (no designated hitter) under
real conditions (no artificial turf, no white-domed ceiling that
makes it almost impossible to see a pop-up or fly ball, normal
outfield dimensions and no huge trash bag for an outfield wall)
the Braves would have won.
I pointed out to my friend who took me to the Series, himself a
National League expatriate, that baseball under such conditions
violated all the understood norms of the game from time
immemorial. As I mused how much better the game would be if
returned to its traditional roots, my friend interjected.
"What about night baseball? Get rid of that, too?" he
asked. "Different," I said.
"What about the reserve clause," he continued.
"A different issue," I said. "That was indentured
servitude."
Ever the Socratic questioner, my friend asked, "Well, wasn't
it better when the same players played for the same team every
year? Didn't that establish more community? Could you really see
DiMaggio or Koufax in different uniforms every year? When you
think about it, free agency wasn't progress at all."
I saw where this was going, so I pulled out my standard response
when the force of reason is not on my side.
"Look," I said, "it's just different. And if you
can't see that, I'm not going to waste my time talking about it.
Do yourself a favor: Go watch hockey and leave baseball in the
hands of people who understand how the game was meant to be
played."
I do not know if Cass Sunstein is a baseball fan. But if he does
appreciate the game, he might agree with me that serious students
of baseball and constitutional theorists share a common obsession
with the myths and realities of the past, the limits and
possibilities of innovation, the sometimes unavoidable collision
course between original intent and the forces of modernization,
and, above all, the development of rules and procedures, which
are enforced on a neutral and generally applicable standard, that
insure no one team or individual gains a systemic advantage over
another, but succeeds or fails based on the merits. Let us turn
to a couple of examples: In baseball, all batters are entitled to
the same number of balls and strikes, regardless of their skill.
Under the federal Constitution, all citizens stand equal before
the law, regardless of their color, gender, national origin, race
or religion. These are rules that are neutral on their face,
since no one is singled out for different treatment.
But where the similarities between constitutionalism and baseball
become even more apparent is when the rules undergo change. In
1972, the American League adopted a rule that allowed each team
to "designate" a hitter for the pitcher, traditionally
the worst offensive player in
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the game. Fans do not watch games to see the pitcher bat, league
officials reasoned, so why not relieve them of that burden,
inject some additional offense into the game, and liven things
up. While baseball nonoriginalists cheered the American League's
decision as necessary in light of evolving societal standards,
traditionalists hissed the rule change, claiming that
administrative overseers, without the consent of their fans,
usurped the game's original design. So much for the sacrifice
bunt, the bunt and run, the tough late inning pitching changes,
the strategic use of pinch-hitters, complained the baseball
originalists. All these established customs and traditions that
had been intertwined with the game since its origin were suddenly
reduced to rubble with the stroke of an administrative pen.
Baseball originalists, as I (and Professor Sunstein might) will
call them, remain furious over what they see as a unjustified
partisan departure from the established rules of baseball that
had been in place for years. But I surmise that Professor
Sunstein might also ask whether this rule change was a departure
from neutrality, or just the replacement of one partisan rule
with another. For baseball traditionalists, as well as
constitutional theorists, Professor Sunstein has posed a tough
question: What makes one rule change any less partisan than the
change that put the previous status quo into place?
In THE PARTIAL CONSTITUTION, Cass Sunstein has pulled together a
decade's worth of serious thinking on the principle of neutrality
in constitutional law into a superb, sophisticated and quite
readable book. Professor Sunstein states his thesis upfront and
in parsimonious fashion: the search for neutral principles in
constitutional method and interpretation will forever remain a
fruitless one because the nature of the enterprise itself cannot
help but be guided by value-positive judgments. Whether such
value-choices are reflected in new approaches to constitutional
method, in the substantive principles that give ultimate meaning
to constitutional provisions, or in the changes in societal norms
and mores that lead our legal and political institutions to shed
previous rules in favor of new ones, differences over the worth
of those choices will divide the participants who made them. The
consequent debate centers on whether such choices are consistent
with the nonpartisan, status quo baseline of the extant
constitutional order rather than assessing the wisdom of the
substantive value- choices or asking whether such choices are
consistent with the shared principles of the American
constitutional tradition.
Professor Sunstein's criticizes the trend in constitutional
scholarship that views the status quo in constitutional
interpretation as the foundation from which neutral principles
emanate. If the status quo is equated with neutrality, then
judicial departures from it smack of partisanship and moral
rootlessness. When the law moves in a direction that shakes the
status quo and consequently forces a reconsideration of settled
practices associated with previous constitutional doctrine or
discards them altogether, defenders of the old order criticize
such innovation as if it were a heretical violation of the state
of nature. Because constitutional theorists, whether a self-
proclaimed originalist such as Robert Bork, or a modern
noninterpretivst such as Lawrence Tribe, remain committed to the
distinction between law and politics, justification for change
must invoke the language of law and interpretative principles.
Professor Sunstein argues that these criteria value above all a
professed commitment to neutral principles. If constitutional
theorists ever confessed that their substantive preferences
influenced their methodological approaches to constitutional
interpretation on such questions as whether the Constitution
guarantees the right to abortion, permits or prohibits
affirmative action, or allows public universities to ban racist
or sexist speech, the crucial distinction between law (which is
authoritative) and politics (which reflects majoritarianism) is
blurred. For the Constitution to remain law, and thus bind public
officials and private citizens, it cannot mean what judges,
legislators or defiant constituencies want it to mean at a given
moment. Language, structure and the historical record must inform
the interpreter's confrontation with the constitutional text,
whatever their political or policy preferences, or else the
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enterprise simply becomes an exercise in personal value-choice.
Professor Sunstein contends this either-or choice that forms the
dominant paradigm in constitutional scholarship is a false one.
Text and intent are fundamental and essential tools in
constitutional interpretation; but when language and historical
record do not resolve the clear intent of a constitutional
provision, those who interpret the text are drawn to nontextual
sources to inform their understanding of it. Originalists have
criticized the use of nontextual sources to guide constitutional
interpretation, on the premise that to depart from text and
framers' intent is to contaminate the process of value-neutral
adjudication. Professor Sunstein rebuttal to originalist
jurisprudence, or what he calls constitutional formalism, is
comprehensive and persuasive. Regardless of one's self-professed
commitment to reliance on text and intent, substantive
preferences enter into the process of constitutional
adjudication. Rather than admit that constitutional
interpretation cannot help but involve hard choices between
competing values, formalists prefer to make such choices
covertly. Professor Sunstein is on firm ground here. One has an
almost limitless choice of targets with which to support
Professor Sunstein's claim that constitutional formalism is
riddled with internal contradictions, whether the question
involves the enumerated provisions of the Constitution, or the
debate over what unspoken rights are nonetheless covered by the
document's guarantees to liberty and equality.
But the weakness of formalism's attempted defense of a
value-neutral approach to constitutional interpretation forms the
crux of its challenge to what Professor Sunstein calls the search
for substantive principles to inform this enterprise. Political
preference and constitutional jurisprudence form a nexus in the
formalist approach to interpretative principles, but the same can
-- and must -- be said for its critics. Constitutional modernists
who support the use of nontextual sources and the ever-popular
evolving societal standards rationale to interpret the
Constitution must defend the use of such judicial discretion when
political majorities have expressed the opposite view. Why are
courts permitted to set aside the populace's belief on abortion,
race-based remedies or the death penalty? How, for example, can a
plausible argument be made that the Constitution prohibits the
death penalty per se, when the text and intent of the document
offer no clear basis for such a position? Justices William
Brennan and Thurgood Marshall used to cite the "evolving
societal standards" principle to support their judicial
opinions that argued against capital punishment. But I am not
sure to whose societal standards these two formidable jurists
were referring, since public opinion has and continues to support
capital punishment with great enthusiasm. Democratic principles
require deference to majority preferences, even more so when the
text and intent of a constitutional provision seems to support
that position as justified. Does this mean that courts can ignore
the weight of such evidence in their own deliberations?
Professor Sunstein does not answer this question. To be fair,
this is one of the few substantive areas of civil rights and
liberties that he does not treat in his book. But if he had, I
suspect that Professor Sunstein would argue that societal
standards can evolve to the point where previous conceptions of a
substantive constitutional provision are rejected in favor of a
new one. Here is where Professor Sunstein's impressive grasp of
law, political science and philosophy comes together to suggest
an approach to constitutional interpretation that is more complex
and subtle than the either-or paradigm of constitutional
scholarship he criticizes as outmoded. Unlike the constitutional
liberalism that deified the Warren Court and made judicial review
the engine of social and political reform, Professor Sunstein
argues that such innovation is better grounded in democratic
principles when it is deliberative in nature. A constitutional
liberalism that makes the courts the epicenter of societal change
fails to adhere to the Constitution's great and enduring call for
deliberative democracy. Rather than proceed from a false baseline
of status quo neutrality, this dialogue should center on what
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Professor Sunstein identifies as the shared commitments of the
American constitutional and political tradition -- political
equality, liberty, citizenship, democratic deliberation, and
agreement on an ideal politics -- to determine the substantive
values that inform text and structure of the Constitution.
Professor Sunstein has written a book that is remarkable in its
intellectual ballast. This is complex stuff. Its scope is broad,
but never departs from its centrifugal thesis -- that
constitutional scholarship must reorient itself away from the
dysfunctional either-or paradigm and begin to acknowledge the
need for democratic deliberation. Readers will disagree with
Professor Sunstein's position on what specific outcomes the
Constitution does and does not require of these shared values,
but will remained impressed by his thoughtful and scholarly
manner. Legal authoritarianism, a phrase that he uses to describe
the absolutist jurisprudence of liberal icons such as Justices
Hugo Black and William O. Douglas, is not the core of Professor
Sunstein's case. Rather, THE PARTIAL CONSTITUTION offers a
sensitive and evocative contribution that will serve as an
foundational reference point in the need to forge a new paradigm
of constitutional scholarship. This book is welcome news for
students of constitutional law jurisprudence. Baseball
originalists, on the other hand, should look elsewhere.