ISSN 1062-7421
Vol. 12 No. 5 (May 2002) pp. 246-249.
DESIGNING DEMOCRACY: WHAT CONSTITUTIONS DO by Cass R. Sunstein. New York: Oxford University Press, 2001. 304
pp. Cloth $29.95. ISBN: 0-19-514542-9.
Reviewed by Vanessa A. Baird, Department of Political Science, University of Colorado
In constitutional regimes, we tend to be skeptical about endowing a majority with the power to protect minorities.
It is almost uncontroversial to suggest that the preservation of democracy requires certain kinds of decisions
to be insulated from democratic deliberation. Yet, this is precisely the proposition that Sunstein challenges
in his book DESIGNING DEMOCRACY. He claims that deliberative processes can effectively result in rights protections
and the maintenance of the rule of law. He suggests, "liberty-protecting nations have often ... required
broad democratic debate and clear legislative permission, before permitting liberty or equality to be invaded"
(p. 4). Not only does he suggest that we ought to deliberate about those rights protections, he also offers reasons
to feel optimistic about the
ability of democratic processes to do so effectively.
There are many reasons to think that he is wrong. It is convenient to repress political enemies for political
and economic gain. History is replete with examples in which majorities have been quite happy to trample minority
rights. Fair trials and public defenders are expensive; search and seizure protections allow criminals to go free.
Free speech is potentially harmful; fringe political and religious groups can become powerful or cause violence.
Members of the public are generally supportive of suppressing rights protections for their political enemies.
Even Sunstein himself sets up the argument in a way that makes it difficult to defend his proposition. For example,
he defends the notion that a representative body in Israel ought to make the determination about whether to allow
Israeli police to torture suspected terrorists. He also supports the rights of citizens to decide whether homosexuals
should be allowed to marry. That these questions belong in the hands of deliberative bodies implies that there
are few limitations on what the public should be able to decide. Sunstein also seems to suggest that the appropriate
level of rights protections ought to be determined by the people, even those that might be in jeopardy of being
reasonable.
His first point in the book, in Chapter 1, is to admit that the public might not always be reasonable. He draws
on empirical evidence to show that as people deliberate with those who are like-minded, they are likely to become
more extreme in their opinions. However, he estimates that one of the most important things that constitutions
do is to prevent any of these groups from being able to influence policy single-handedly. Coalitions are constitutionally
required to speak to their political enemies, from which the outcome is much more reasonable. One could think
of this chapter as an update of Madison's FEDERALIST 10.
Chapter 2 points out that given the way that constitutions organize our
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deliberations, we do not have to agree on the foundations of first principles in order to agree on constitutional
principles. An example of this is that there are many reasons for protecting freedom of religion or speech: individual
liberty, utilitarian or theological reasons, or simply to bring about social peace. However, deliberations about
these issues do not required people to agree on the underlying philosophy. These incompletely theorized agreements,
Sunstein argues, will make deliberation much easier, giving us reason to feel optimistic about the abilities of
the public to deliberate reasonably.
In Chapter 3, he discusses the relationship between constitutions and tradition, arguing that traditionalism is
not an appropriate approach to use when interpreting the Constitution. This is one of the most thought provoking
chapters in the book. He argues that most constitutions embody a break from tradition, and therefore, tradition
cannot be used as a weapon against what is reasonable in constitutional interpretation. This is probably the most
controversial subject in constitutional discussions of today. The Supreme Court breaks from tradition with BROWN,
yet traditionalists seem to have no trouble with that because any other outcome
would be unreasonable. On the other hand, the Supreme Court ruled in BOWERS that homosexuals do not have the right
to sexual privacy because people have traditionally believed that sodomy is evil. (Burger cites Blackstone in
calling sodomy a "malignity worse than rape"). So, although historic discrimination is the basis for
creating race as a suspect class, historical discrimination seems to be the basis for continued discrimination
against homosexuals. This inconsistency in the role of history in constitutional interpretation is staggering
and deserves a great deal more attention, as Sunstein argues.
Scalia (1989), in his defense of original intent as being the lesser evil, admits that though the founders thought
that public flogging was a reasonable punishment, and he probably would not accept such a punishment as being consistent
with the cruel and unusual punishment clause. He also argues that since the public has decided that public flogging
is unacceptable, Scalia does not have to make that choice. Scalia's argument is not inconsistent with Sunstein's
thesis in that both agree that there are constitutional questions that belong in the hands of the public. Where
they differ is where the buck stops. Scalia argues that the buck has to stop with original intent, or tradition,
whereas Sunstein argues that the buck stops with reason. I would recommend the use of Chapter 3, with Scalia's
1989 essay, "Originalism: The Lesser Evil," in a judicial process course on the different kinds of rationales
for judicial decision-making.
Sunstein then goes on to discuss a few constitutional issues in detail. For example, in Chapter 4, he discourages
a constitutional protection for a state or province to secede, saying that this prevents reasonable deliberation
because it creates collective action problems. He makes the exception that when the national government is very
obviously invading individual liberties, then they have the right to secede. So, for example, California could
have legitimately seceded (if it had wanted to) in order to protect the rights of its Japanese citizens during
World War II, after the Supreme Court failed to protect their rights. On the other hand, there is no reason to
guarantee this secession right textually, he argues. Chapter 5 discusses the principled notions of what constitutes
"high crimes and
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misdemeanors," for which a president can be impeached. Chapter 6 discusses the basis for delegation of powers
to administrative agencies.
The next three chapters discuss the principles of equal protection in detail. First, in Chapter 7, he defends
the notion that equal protection ought to be based on an anti-caste principle, rather than on an anti- differentiation
principle. He criticizes specifically the irony of the rationale that because of the historical institutional
designation of blacks to the lower caste, whites are protected from reverse discrimination under the same level
of scrutiny.
One of the most interesting discussions in the book is in Chapter 8, in which he argues that sexual orientation
discrimination is actually sex discrimination. One obvious argument is that the prohibition on same sex marriage
is sex discrimination because if two women wanted to get married, they are prohibited from doing so solely because
one of them is not a man. On the other hand, men and women are treated equally in that neither can marry a person
of the same gender. Sunstein approaches this question from a completely different angle. He argues that the prohibition
on interracial marriage was based on a philosophy of white supremacy; the Supreme Court in fact, used the white
supremacy basis of the law for this prohibition as the reason for its unconstitutionality. In fact, in SCOTT v.
SANFORD, the
Supreme Court argued the abolition of the slave trade in the northern states could not be taken as an indication
that the peoples of these states considered people of African descent to be equal citizens because they continued
to prohibit interracial marriage.
Sunstein argues that the same reasoning applies to the prohibition of same sex marriage. It is based on the stereotype
that men are supposed to be sexually dominant and women are supposed to be sexually subordinate. Only a man and
a woman can complement one another in a marriage because they are each supposed to fulfill a particular role.
Furthermore, just as race cannot really be considered a dichotomous indicator of a person's identity, neither can
gender be considered dichotomous. For this reason, a ban on same sex marriage should be considered unconstitutional
because it is based on what the Court has already decided are a constitutionally unacceptable rationale: gender
stereotypes. So, though, Sunstein admits that homosexuals cannot be considered a lower caste in terms of socio-economic
status, and therefore, as deserving of equal protection as women or blacks, he argues that discrimination of homosexuals
is nonetheless unconstitutional.
In Chapter 9, Sunstein takes Scalia's logic in SMITH to its logical conclusion in the context of gender discrimination
in religious organizations. If all generally applicable laws that are not meant to discriminate intentionally
are to be applied regardless of how severely they encroach upon the heart of the religion, then churches cannot
discriminate based on gender. Sunstein does not agree with Scalia's reasoning, however, and argues for a more
balanced approach to making exceptions for religious minorities. He says that we ought to balance society's interests
with the extent to which the religion is burdened with the generally applicable
regulation. Under this balancing rule, he argues that disallowing gender discrimination is sufficiently a strong
state interest and that it does not, in general, burden religions sufficiently to disallow gender discrimination.
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In the last substantive chapter, Sunstein argues that social and economic rights could be protected in constitutions.
The fear of such constitutional protections is that they give standing to people against a government that might
be incapable of providing such protections. He uses the example of South Africa to show that constitutional protections
of social rights did not lead to the absolutist protection that some fear. The South African Supreme Court has
dealt with the question in a reasonable way. The justices understand the limitations on the government, while
recognizing that problems with poverty are a result of the past century's Apartheid policies and therefore, need
to be corrected.
Is Sunstein's argument convincing? Can the public be depended on to make reasonable decisions with regard to rights
and liberties of minorities? I would argue that we have no choice but to depend on the people. Skeptics of democratic
deliberation would suggest that these questions be left to the courts. However, Rosenberg (1991) tells us that
the hope of social reform in the way of rights protections from courts is hollow because he believes that courts
are incapacitated for making change. Moreover, Epp (1998) shows that in a cross-national context that rights and
liberties protections from national high courts are insufficient without groups that support strategic litigation.
We also know that other institutions might be loath to support or enforce unpopular court decisions. Thus, courts
are often limited in
their ability to protect rights in many instances, which brings us back to square one. Rights protections are
dependent in large part on our ability to deliberate reasonably as a public. Sunstein's thesis adds to this literature
in that it makes us feel less pessimistic about the public's ability to reason in the context of rights protections.
This book represents an important contribution to our thinking about what constitutions do, as well as what constitutions
ought to do, and therefore should be considered a must read for anyone who is a constitutional scholar.
REFERENCES:
Epp, Charles R. 1998. THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS, AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE.
Chicago: The University of Chicago Press.
Rosenberg, Gerald. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago: University of Chicago
Press.
Scalia, Antonin. 1989. "Originalism: The Lesser Evil." CINCINNATI LAW REVIEW 57 (3): 849-65.
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Copyright 2002 by the author, Vanessa A. Baird.