I just sent this to Ben Smith: Cass Sunstein and others, like Bruce Ackerman, have been touting this positive law stuff for years. They advocate institutionalizing the liberal agenda through the courts, particularly the 14th Amendment. Equal rights would be expanded to include “economic justice,” i.e., the equal (or more equal) provision of wealth, education, etc., among the citizenry. The agenda would not be subject to electoral results or congressional influence because it would be imposed from the judiciary. This is an extremely radical proposition, completely at odds with the Constitution itself and the Framers’ intent. And Sunstein and Obama know that the public would be appalled with their views if honestly presented to them. So, Sunstein denies it — even characterizing it as conservative, and Obama’s spokesman calls the 2001 interview a distraction. It is neither.