The Partial Constitution

Paperback

ISBN 9780674654792

Publication date: 08/19/1998

American constitutional law is at a crossroads. In a major new interpretation of the Constitution, Cass Sunstein offers a clear account of our present dilemmas and shows where we might go from here.

As it is currently interpreted, the Constitution is partial, Sunstein asserts. It is, first of all, biased. Contemporary constitutional law treats the status quo as neutral and just, and any departure as necessarily partisan. But when the status quo is neither neutral nor just, Sunstein argues, reasoning of this sort produces injustice. The Constitution is also partial in another sense: its meaning has come to be identified solely with the decisions of the Supreme Court. This was not always the case, as Sunstein demonstrates; nor was it the intention of the country's founders. Instead, the Constitution often served as a catalyst for public deliberation about its general terms and aspirations--and Sunstein makes a strong case for reviving this broader understanding of the Constitution's role.

In light of this analysis, Sunstein proposes solutions to some of the most hotly disputed issues of our time, including affirmative action, sex discrimination, pornography, "hate speech," and government funding of religious schools and the arts. In an especially striking argument, he claims that theequal protection clause of the Fourteenth Amendment--not the right to privacy--protects a woman's right to choose abortion. Sunstein connects these and other debates to the Constitution's historic commitment to public deliberation among political equalsand in doing so, he reconceives many of our most basic constitutional rights, such as free speech and equality under law. He urges that public deliberation about the meaning of the Constitution in turn be freed from a principle of neutrality based on the status quo. His work points to a historically sound but fundamentally new understanding of the American constitutional process as an exercise in deliberative democracy.

Praise

Sunstein argues that contemporary constitutional law is 'partial' because its meaning has come to be identified solely with decisions of the Supreme Court and that it is biased because it presumes that the status quo is neutral and just and that any departure is necessarily partisan. Rejecting these characteristics, he conceives basic rights such as freedom of speech, equal protection, and privacy, and proposes new solutions to issues including abortion, affirmative action, sex discrimination, pornography, 'hate speech,' and government funding of religious schools and the arts.

—Law & Social Inquiry
Essential reading for anyone who wants to understand the kinds of issues that are dominating the contemporary constitutional agenda and to understand analytical approaches that will become more influential as inevitable generational transformations continue. And, depending on the contingencies of presidential decision making (and senatorial acquiesence), it may be essential reading for anyone trying to predict the future course of judicial construction of the Constitution.

—Sanford Levinson, New Republic
Taking on the philosophical underpinnings of democracy as well as the ticklish questions of pornography, abortion, welfare, free speech, etc., this book calls all those involved in the American political and judicial processes to a new understanding of the Constitution.

—Washington Post Book World
Sunstein presents a major, new interpretation of the Constitution and considers the bias and partial results of its present interpretation in a lively, involving survey blending history, politics and legal considerations.

—Bookwatch
Cass Sunstein has convincingly shown that we could reorient our thinking about the Constitution without doing undue violence to our basic institutions or to our constitutional history.

—Robin L. West, Michigan Law Review
Sunstein has produced an essay that is provocative in the best sense of that term; it provokes fresh insight, new ways of thinking about matters that have become dull in the hands of lesser lights. He constructs a compelling general theory of constitional interpretation, according to which 'naked preferences' of vested interests must give way to public values in our 'republic of reasons'...He follows his own canon of intelligibility, writing deftly for those familiar with the methods of constitutional interpretation but rendering these methods accessible to readers who may be complete neophytes.

—Edward McGlynn Gaffney, Jr., Commonweal
Professor Sunstein has written a book that is remarkable in its intellectual ballast...The Partial Constitution offers a sensitive and evocative contribution that will serve as a foundational reference point in the need to forge a new paradigm of constitutional scholarship.

—Gregg Ivers, Law and Politics Book Review
Cass Sunstein's The Partial Constitution occupies a place among the finest work in recent constitutional theory. It unobtrusively melds political philosophy and economics into its assessment and criticisms of constitutional cases and trends.

—Samuel Freeman, Law and Philosophy
This is a book that cries out for reading by anyone interested in the role of law and social change, or for that matter, anyone moved enough by the idea of democracy to vote.

—Virginia Quarterly Review
Sunstein gives new life to the oldest idea in the book of social criticism: the complaint that we mistakenly believe our current practices are somehow neutral or natural. What's remarkable is Sunstein's ability to explore its intricacies, to visit a wonderfully wide range of Supreme Court decisions and show in fine-grained detail just how they make that mistake. This book offers an invigorating portrait of American constitutional history and theory. It deserves a very wide readership indeed.

—Don Herzog, University of Michigan
The Partial Constitution may well set the intellectual agenda for constitutional scholarship in this decade. It presents a powerful argument for reconceptualizing constitutional law. On topics ranging from cross-burning to abortion, author>Sunstein/author offers a formidable challenge to conventional constitutional analysis.

—Daniel A. Farber, University of Minnesota Law School
Sunstein reorients liberalism away from an undifferentiated distrust of government and toward a more sensitive awareness of desirable uses and misuses of the governmental power that is an inevitable part of modern society. The book thus constitutes a powerful attack not only on many contemporary constitutional understandings about topics such as freedom of speech, freedom of the press, due process, equal protection, and the state action principle, but also on some of the central tenets of classical and modern liberalism.

—Frederick Schauer, Kennedy School, Harvard University
Sunstein sheds light on contemporary issues of free speech, reproductive freedoms, government subsidies of art and education, and at the same time he launches a profound invitation to shift constitutional debate away from preoccupation with courts and toward arenas of democratic participation. Any serious scholar of the Constitution, and indeed, any serious citizen, should study this important book.

—Martha Minow, Harvard Law School

Author

Cass R. Sunstein is Robert Walmsley University Professor at Harvard Law School. Recently named Senior Counselor to the US Department of Homeland Security, he is the author of many books, including Conformity and How Change Happens.