Bench Memos

Cass Sunstein’s “Zombie Constitution”

In Policy Review, Steven Menashi, an Olin/Searle fellow at Georgetown law school, offers a withering critique of law professor (and current OIRA head) Cass Sunstein’s new book A Constitution of Many Minds:  Why the Founding Document Doesn’t Mean What It Meant Before.  Here’s Menashi’s closing paragraph:

The whole project of A Constitution of Many Minds turns out to be much ado about a pretty simple point. Sunstein starts with the idea that constitutional interpretation involves judgments about “political morality.” So as not to make those judgments seem entirely baseless and subjective, he gives his hypothetical judge a lifeline: He can “ask the audience” what the correct answer is and the Condorcet Jury Theorem says it will probably be correct. So Sunstein replaces the ideas of the 18th-century American Founders with the idea of an 18th-century French mathematician. But how does one even apply Condorcet’s theorem in this context? What does it mean to say that a member of the public has a greater than 50 percent chance of having the correct political morality? Is that even an appropriate subject of judicial inquiry? Sunstein starts with judicial minimalism and ends with moral correctness. However well-intentioned, he’s created a monster.

I haven’t read Sunstein’s book, but many of the flaws that Menashi identifies remind me of Sunstein’s earlier book Radicals in Robes, which I reviewed in NR in 2005.

I’ll also highlight Menashi’s coining of the term “zombie Constitution” as a fitting riposte to advocates of the “living Constitution”:

Most living constitutionalists … prefer to retain the original constitutional text but infus[e] it with modern-day ideals. So living constitutionalists aim to establish not a “living” but a zombie Constitution; they want to take the corpse of constitutional text and reanimate it with new principles in every generation. But this Constitution is at war with itself. Like Frankenstein’s monster, half dead and half alive, it wanders in the wilderness never finding complete acceptance. Call this “the undead hand problem”: The living Constitution is always an unstable mix of living and dead elements, chosen according to the preferences of the assembler.

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