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Constitutional Personae: Heroes, Soldiers, Minimalists, and Mutes (Inalienable Rights), by Cass R. Sunstein
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Since America's founding, the U.S. Supreme Court had issued a vast number of decisions on a staggeringly wide variety of subjects. And hundreds of judges have occupied the bench. Yet as Cass R. Sunstein, the eminent legal scholar and bestselling co-author of Nudge, points out, almost every one of the Justices fits into a very small number of types regardless of ideology: the hero, the soldier, the minimalist, and the mute.
Heroes are willing to invoke the Constitution to invalidate state laws, federal legislation, and prior Court decisions. They loudly embrace first principles and are prone to flair, employing dramatic language to fundamentally reshape the law. Soldiers, on the other hand, are skeptical of judicial power, and typically defer to decisions made by the political branches. Minimalists favor small steps and only incremental change. They worry that bold reversals of long-established traditions may be counterproductive, producing a backlash that only leads to another reversal. Mutes would rather say nothing at all about the big constitutional issues, and instead tend to decide cases on narrow grounds or keep controversial cases out of the Court altogether by denying standing.
As Sunstein shows, many of the most important constitutional debates are in fact contests between the four Personae. Whether the issue involves slavery, gender equality, same-sex marriage, executive power, surveillance, or freedom of speech, debates have turned on choices made among the four Personae--choices that derive as much from psychology as constitutional theory. Sunstein himself defends a form of minimalism, arguing that it is the best approach in a self-governing society of free people. More broadly, he casts a genuinely novel light on longstanding disputes over the proper way to interpret the constitution, demonstrating that behind virtually every decision and beneath all of the abstract theory lurk the four Personae. By emphasizing the centrality of character types, Sunstein forces us to rethink everything we know about how the Supreme Court works.
- Sales Rank: #458825 in Books
- Published on: 2015-10-07
- Original language: English
- Number of items: 1
- Dimensions: 5.80" h x .90" w x 8.30" l, .0 pounds
- Binding: Hardcover
- 192 pages
Review
"Cass Sunstein provides an enlightening look at the different ways to approach the Constitution. In doing so, he transcends ideology and helps us appreciate different perspectives. He also shows the virtue of his own favorite approach, that of minimalism, which seeks to respect traditions and long-settled practices." -Walter Isaacson, President and CEO of the Aspen Institute, and author of The Innovators
"In this remarkable addition to Oxford University Press' 'Inalienable Rights' series on the American Constitution, Cass Sunstein persuasively speaks not to theories of constitutional interpretation, but to four archetypical judicial personalities reflected in opinion-writing, and in doing so he opens up an imaginative new perspective for appreciating our constitutional history." -Peter L. Strauss, Betts Professor of Law, Columbia Law School
"In Constitutional Personae, Cass Sunstein analyzes judicial review in the United States in terms of four personalities or archetypes. He shows how this model illuminates a wide range of questions, and he offers a subtle restatement and defense of his favorite persona, the constitutional minimalist. Filled to the brim with insights, this is a splendid and imaginative contribution to constitutional theory." -Jack Balkin, Knight Professor of Constitutional Law, Yale Law School
"A novel approach...carefully reasoned and clearly explained, Sunstein's approach offers a more insightful way of analyzing the positions of individual justices than resorting to simplistic ideologies." - Kirkus Reviews
"[A] valuable study of the different approaches that Supreme Court justices take in deciding cases...Given the significance of recent Supreme Court decisions on such issues as campaign finance, health care coverage, and marriage equality, Sunstein has performed a public service by enabling a better comprehension of how these judgments are reached." -Publishers Weekly
"Constitutional Personae has all sorts of treasures in it. Its classifications are illuminating." - The New York Review of Books
About the Author
Cass R. Sunstein is the Robert Walmsley University Professor at Harvard Law School. From 2009 to 2012, he was Administrator of the White House Office of Information and Regulatory Affairs. One of the nation's most prolific scholars, his books include Nudge, Radicals in Robes, Simpler, and Republic.com.
Most helpful customer reviews
2 of 3 people found the following review helpful.
Tinker, Tailor, Soldier, Spy
By Gderf
This erudite constitutional scholar was apparently mesmerized by the John le Carré
novel, motivating this attempt to categorize SC Justices and decisions into four simplistic categories:
Heroes, who engage in social activism,
Soldiers, who generally defer to the other government branches,
Minimalists, who prefer only incremental change ,
and Mutes, who prefer to defer decisions.
The attempt fails badly as Sunstein all but admits in the waffling text.
Each is divided into subsections. Each Justice cited is seen to waffle between stances, sometimes even in the same decision. Only one, Oliver Wendel Holmes, clearly fits into the Soldier category, but even he shifted stance when convenient. He classifies Louis Brandeis as an anti-progressive Soldier. Doesn't that make him a progressive Hero? It doesn't make sense to me. Sunstein himself claims to favor Minimalism in the tradition of Felix Frankfurter and Sandra Day O'Conner. It's not convincing as his other works show a tendency towards social activism. He deplores heroes while endorsing the heroic decisions of the Warren Court. It seems that Sunstein is a Minimalist except when convenient to espouse something else. That probably holds for every Justice, making the categorizations useless.
There are two very good chapters, both of which are only vaguely related the the authors theme. The chapter on Burkean minimalism, better termed rationalism, examines the judicial legacy of Edmund Burke. There is a very interesting history of consensual decision making by the SC. After John Jay initiated seriatum opinion policy, chief justices from John Marshall onward promoted unanimous decision making with holding up of dissents so that the Court could speak with one voice. That changed in 1941 with the appointment of Chief Justice Harlan Stone. Nowadays 5-4 decisions, a rarity before 1941, are the order of the day in a split factional Court. Chief Justice John Roberts is failing badly in his avowed attempt to reverse the tendency towards factional opinions in the Court.
Fictional conversations between the “personal” reads like the work of a frustrated novelist with more imagination than legal acumen. It's disappointing that this, formerly well written, judicial expert has morphed into an amateur psychologist obsessed with behaviorism with this and his book on “nudging.” That one even suggests government usage of behavior modifying advertising techniques to promote nanny state social welfare. Sunstein is hardly what he claims to be in 'Constitutional Personae.'
0 of 1 people found the following review helpful.
not a good effort
By M. Heiss
I get what Cass Sunstein is trying to do here: provide a historical context for judicial decision. It just didn't come off that well in the book.
As much as Sunstein claims to be on the side of the minimalists, it's really the heroes he wants us to admire.
Remeber, Cass Sunstein is the same tyrannical busybody who thinks it is the proper role for *wise bureaucrats* to NUDGE to public into preferred public policy directions. I want clean cities with low crime and lots of private space. Therefore, I want the government to NUDGE the public with tax credits for open caryy, high fines for littering and the dropping of cigarette butts, and a tax credit for residents of suburban or rural areas.
Sunstein likes and admires (!) Roosevelt's prolongation of the Depression in the 30's and 40's. He likewise admires (!) Roosevelt's consolidation of decision making away from individuals and into the bureaucracy. Since Sunstein's philosophy of governing is completely at odds with mine, it is no surprise that this book advocates and admires big, pushy government policies and a subservient, led public. I personally prefer a subservient governing class and a vigorous, individualistic public.
The book is a ramble, and it doesn't do what it purports to do.
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