The Harvard law professor Cass Sunstein is a prolific author with very wide-ranging interests. He has written (and in some cases co-authored) books on behavioral economics; on lies, rumors, and conspiracy theories; on republican theory and political conflict; on feminism; on free speech and dissent; on animal rights; even on Star Wars—and I’m leaving some out. In many of the fields in which Sunstein has written, I would hardly be qualified to judge his work. (Aren’t the Ewoks just really small Wookiees?) But his latest effort, How to Interpret the Constitution, is one that I can confidently say is very disappointing. This brief book has three primary characteristics: assertion, excessive repetition, and fallacious logic.
Sunstein’s argument is structured as follows. The Constitution does not itself tell us anything about how it is to be interpreted. Therefore, each of us—but judges especially, given their interpretive authority— must choose a “theory” of interpretation. The guiding principle of that choice is to seek what “would make the American constitutional order better rather than worse.” This choosing, Sunstein maintains, grows out of a process of reasoning known as “reflective equilibrium,” a threadbare idea advanced by John Rawls a half century ago, which Sunstein insists several times is “the only game in town.” This in turn means that we check our tentative constitutional principles against their practical results—the latter being “fixed points” to which we are morally attached—and adjust our theory to our practice until it reliably yields a pattern of outcomes we can endorse (though not perhaps a result we will applaud in every single case).