Cass Sunstein is the Robert Walmsley University Professor at Harvard Law School. During Obama’s first term he was the Administrator for the Office of Information and Regulatory Affairs. He is the author of dozens of books including Nudge (with Richard Thaler) and The World According to Star Wars. His most recent book is How to Interpret the Constitution.
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It would be a miracle if the original understanding of the Constitution just landed time and time again with the views in 2023 of the right-wing of the Republican Party. That would be too amazing a coincidence. That’s more than troublesome.
Cass Sunstein
Key Highlights
- Introduction – 0:38
- Thinking about the Constitution – 3:06
- Different Interpretations – 10:44
- Textualism – 24:07
- Amendment or Interpretation – 37:23
Podcast Transcript
Americans revere their constitution. Whether they are on the right or the left, they all admire it. Part of the reason is the constitution leaves a lot to the imagination. It is short and many clauses are purposively vague, so interpretations can vary widely. It means different things to different people. For example, the court has discovered new constitutional rights and after many decades, taken those rights away through a different interpretation.
In other words, the way we interpret the constitution has significant consequences for rights, political authority, and even democracy itself. So, I reached out to Cass Sunstein. He is the author of a new book called, How to Interpret the Constitution. You might recognize Cass, because he is the author of dozens of books including Nudge and The World According to Star Wars. During Obama’s first term he was the Administrator for the Office of Information and Regulatory Affairs. Currently, he is the Robert Walmsley University Professor at Harvard Law School.
This is a conversation about the American Constitution. It is also a conversation about how to think about the constitution. But in many ways, it is a conversation that helps explain how people we disagree with think about the constitution. It’s a complex topic that Cass simplifies. I hope it’s helpful for those who want to understand the constitution, the Supreme Court or American legal theory a little bit better.
Now if you just discovered this podcast, I hope you listen to more episodes. If you like it, please leave a 5 star rating on Spotify or Apple Podcasts. You can also support the podcast as a monthly donor on Patreon or as a paid subscriber on Apple Podcasts. You can also reach out to me at jkempf@democracyparadox.com. But for now… this is my conversation with Cass Sunstein…
jmk
Cass Sunstein, welcome to the Democracy Paradox.
Cass Sunstein
Thank you so much. A pleasure to be here.
jmk
Cass, I really loved your book, How to Interpret the Constitution. I felt like it was a really important book for where we’re at right now. I mean, there’s so many different conversations about the constitution, so many different court cases that we’re trying to grapple with from the Dobbs decision to decisions about affirmative action recently that I think that your book really takes a high-level perspective to help us understand a lot of these ideas.
Cass Sunstein
Thank you for that. That’s completely the goal. So, some of my potential publishers wanted it to be more of a fighting book. These people are right. These people are wrong. I have my view on which people are right and which people are wrong, but I tried to do just what you said. I wanted to step back and give us the ability to see what people are arguing about and that could, I hope, attract maybe a nod or an acknowledgement from people who are in strenuous disagreement with each other.
jmk
I think that’s definitely the case. One thing that struck me about the book too was that I got the impression that the constitution itself really means a lot to you. You’ve obviously spent a lot of time thinking about the constitution and also how others think about the constitution like you just mentioned. The book even includes the text of the constitution. Why don’t we start out by just letting you just mention what the constitution actually does mean to you?
Cass Sunstein
Yeah, well, there are three things to say about that. The first is the constitution was forged, both in the original and then the post-Civil War amendments, by truly amazing people who thought deeply and widely about freedom and self-government and the most fundamental things, at least with respect to political life. So, to see this as a spectacular historical achievement is right but also, to feel as an American that you get to benefit from the amazingness of what they did is right, and to think of the Constitution with strong emotions. The more you understand the founding and the Civil War amendments, I think the more that just happens. So, that’s the first and the most fundamental.
The second thing I’d say is I follow my former boss, Justice Thurgood Marshall, in celebrating the arc of constitutional history. In addition to the post-Civil War amendments and the founding, we can see the Constitution as not just being something from those two periods, but something that includes the 1920s, 1930s, and the 1890s, and the 1970s, and the last 20 years as a way of honoring the best understanding of what the founders were actually doing. They weren’t saying we have it figured out for all time. Follow us, posterity. It’s more complicated than that. So, to celebrate Marshall and Ruth Bader Ginsburg and William Rehnquist and Martin Luther King, Malcolm X too, I think that’s right.
The third thing I’d say is that there are some people who think of our constitution, certainly in the founding period sense, as if it was written by gods and as if we’re ants. That we’re so little and they’re so big. We’re so dumb and they’re so smart. We just have to figure out what they thought and then just do it. That kind of ancestor worship is I think not consistent with the best understanding of American democracy, American constitutional democracy. So, admire them, yes. Revere them, I’ll go there. Worship? No. There were things that the founders thought that were not just. They allowed slavery after all.
There were things that the 14th Amendment – the great 14th Amendment, the sainted 14th Amendment – the 14th Amendment has a lot of advances in it, but we know some things now about sex equality, for example, that they didn’t know back then and to see them as human rather than divine is really, really important.
jmk
I think it’s really important to recognize that the Constitution was not made in just one single moment. Just the amendments themselves are made over the process of hundreds of years now. So, when we talk about the constitution, like you just discussed, the 13th, 14th, 15th amendments were incredibly important. Many people even call that as a second founding of the country and we’ve had many constitutional amendments after that, that again, rewrote the constitution in different ways. When we think about what the constitution means, it’s not just what the founding fathers meant. But there’s many revisions throughout our history where the meaning of the Constitution continued to change. The text of the Constitution continued to change.
Cass Sunstein
So, the post-Civil War amendments are the most important of the textual changes. To see them as a new Constitution, I think we should all get that. I’m not sure I’d phrase it exactly that way, but I get it. It is true that the equality principle of the 14th Amendment is new and massively important, applying the Bill of Rights to the states. It’s controversial to say that 14th Amendment actually was understood to do that. I think the prevailing view is that is the best view, but even if it isn’t, to extend an assortment of rights protections to the states that was done after the Civil War. Before the Civil War, the Bill of Rights applied only to the national government and the Due Process Clause, for example, clearly applies now to the states. That’s really, really important.
That suggests that to see the document as just frozen in the technical founding period is inconsistent with the text. But I’d go further than that. freedom of speech, as we live and breathe it, that’s really a post-1950s thing. That’s not a post-Civil War thing. That came, I guess, technically – I don’t guess, I assert, like it’s a controversial assertion, it’s just true – it came from the Supreme Court. But the Supreme Court doesn’t live in a vacuum.
So, the Supreme Court creates a very broad protection of freedom of speech. It’s responding to the culture in which it lives and we can think of that as our constitutional culture with a small c, not a document, but a constitutional culture and it has a lot of democracy in it. The free speech, which is the most fundamental right of all, that’s pretty new. That isn’t the founding period and it isn’t the Civil War amendments. It is the founding period in the text. That is in the text. Thank goodness for that. But it’s a much bigger idea now than it was at the founding.
jmk
So, how does the court actually use the Constitution to make those decisions, especially as some of our rights continue to evolve and expand over the course of decades or even centuries at this point? Because a lot of the listeners are going to be coming from other countries where the consultations are not quite as old, where you actually know some of the people who wrote the constitutions so that you could go back to what people actually meant. So, when we’re looking at our constitution, we’re revising it and reinterpreting it, how is the court actually using it to make those reinterpretations?
Cass Sunstein
That’s the most fundamental question of all really. I think the answer isn’t radically different in nations that amend their constitutions a lot from nations that don’t. I clerked on the Massachusetts Supreme Judicial Court before I clerked on the US Supreme Court and state constitutions get changed more. So. there are different views. Here’s a view. It says that the way to interpret the Constitution is to allow the democratic process to do whatever it wants, unless the violation of the founding document is unambiguous. You could say that our fundamental theory is self-government, or it might be authoritarian, but our fundamental theory is there’s politics and then there’s law. The Constitution should step in only when we know for sure that there’s a violation of it. That’s a view in some nations. Sometimes political officials want a view of that kind.
There’s a law professor from a long time ago named James Bradley Thayer who defended that view. It can go left of center. It can go right of center. That’s one approach. Another approach says we take the original intent, as you were signaling, where we ask about, let’s say, the First Amendment, freedom of speech or something about freedom of religion. What did they intend? That might produce a very surprising understanding. There’s a recent paper suggesting if we follow the original intent, blasphemy laws are acceptable, consistent with the First Amendment. There’s a third view, and this is actually a long list, but I’m only going to give you some highlights.
A third view is the original meaning. That might sound the same as the original intent, but it really isn’t. The idea is we don’t try to go into people’s heads and elicit their intent. That’s really hard to do. Maybe it’s not the democratic thing to do to go back to someone’s head. The thing to do is think what was the original public meaning of the document. So, if the original public meaning of the Equal Protection Clause, let’s say, allowed racial segregation that’s game over. That’s because the original meaning is authoritative, even if we didn’t like it. That’s another view. There’s a fourth view. So, we now have let the government do what it wants there. We have original intent. We have original meaning.
There’s a fourth view, which is read the document where you can so as to protect the preconditions for democracy. So, some people, Justice Stephen Breyer basically defended this view and said we’re going to be very big on free speech and very big on voting rights, because democracy is fundamental to everything. That’s not a view of originalism. It’s a view of life. Democracy is fundamental. So, we’ll understand the Constitution to protect political dissent, even if the original meaning didn’t do that. We’ll understand the Constitution to strike down restrictions on the right to vote, even if the original meaning wasn’t consistent with that. Otherwise, we’ll be pretty cautious.
Then I’ll just give one more view, let’s call it moral readings, where some people say that what we need to do, what we will inevitably do, and they say what we should do is take these broad terms like freedom of speech and equal protection of law, due process of law, to understand them in the morally best way, so that if equal protection is morally best understood to forbid racial segregation, then that’s the best way to read it. If it’s not, that’s not the best way to read it.
Some people get nervous that moral readings are subjective and too intrusive on democracy. Moral readers say you’re going to be doing that even if you don’t think you are. They’re going to be saying, we allow this way moral progress. So, roughly, you can see moral readers, democratic readers, and historically minded readers who try to figure out what was meant at the time.
jmk
Now, when we look at the current composition of the Supreme Court, we can label different justices as being originalist. We can label other justices as being democracy promoters, like you just mentioned Stephen Breyer, who’s no longer on the Supreme Court, but was just recently. Historically, he would be a democracy promoter. But those labels aren’t entirely accurate because a lot of the justices obviously will mix and match different interpretations and will approach some decisions from one interpretation and then approach other decisions from a completely different style or method of interpreting the Constitution. Is the fact that they’re kind of changing their approach to interpreting the Constitution just a way to kind of match to what their ideological predisposition is or is there something more to it?
Cass Sunstein
So, I had a phrase go through my mind over the last few months, which is, everyone is the hero of their own life. I don’t know if anyone else said that, but it kind of came to me unbidden. Everyone’s the hero of their own life. So, everyone has an account, which is pretty upbeat about one’s own actions. That’s certainly true of the Supreme court justices. Let me track what I think they’d say. I think Thomas would say, Justice Thomas, Clarence Thomas, ‘I’m an originalist and I’m always an originalist.’ That’s pretty true. He says, ‘If there was some decision from 1940 or 1970, that wasn’t originalist, I went to overrule it, because I think the original constitution is what prevails, even if I don’t like it.’ I think that’s fair for him.
Now, it may be that some of his understandings of the original understanding fit with a certain political view better than they fit with actual history. I think that’s not false, but I think what Thomas would say is, ‘Well, let’s discuss the history then and if I got it wrong, I’ll try better next time.’ Or I think he’d say, ‘My view of history is correct and you on the left are playing games with history.’ That’s Thomas.
Then there’s Justice Barrett, but I think it’s true of Justice Gorsuch also. They’re originalists. They think that the founding document should be understood in accordance with the original meaning. But I think they’d agree with Justice Scalia, whom I knew very well and who spoke at the University of Chicago one day. He was reminded that some of his votes don’t fit with the original understanding and he said, ‘I’m an originalist, but I’m not crazy. I respect precedent. So, if I learn tomorrow that racial segregation was actually permitted, consistent with the original understanding, I’m not going to say we’re going to allow racial segregation in the United States. The law has to be stable.’ I think Barrett and Gorsuch are, more than Thomas, interested in following precedent, even if they disagree with it. They’re pretty consistent originalists.
I’ll give you just a couple others. I think Chief Justice Roberts isn’t an originalist. He’s more eclectic. He’s interested in the original understanding, but he doesn’t think that it’s binding. He thinks that it’s an input. It’s relevant. But he also cares about precedent. He has some inclinations to respect the outcome of the democratic process, not always, but I think his presumption is if the political process did it, we should let it go. That can be overcome by any number of things, but he’s in that first camp we discussed much of the time. He’s not an originalist by any means. He cares about traditions.
So, he tends to be a constitutional traditionalist often. We haven’t discussed that. It’s based on long-standing practice. Don’t go in a time machine back to the founding, look at the last 80 years. What have our traditions been? He cares about that.
Justice Sotomayor, I think it’s fair to say, is a moral reader as well as a democracy protector, and her moral readings tend to line up with the left. That’s where she goes. She’s definitely not an originalist. She’s not someone who says, let’s follow traditions. She thinks traditions sometimes deserve scrutiny and she thinks also that the idea of just saying to the political process, it’s okay because the Constitution is ambiguous, would wreak havoc with the emergence of new rights and she is good with the emergence of new rights.
jmk
Sotomayor being described as a moralist in terms of her interpretation is fascinating to me because when you describe the moralist view, it definitely comes across to me as something that is more of a conservative approach to the constitution. That you’d be looking at morals in society and thinking of something closer to traditionalism. But you’re describing Sonia Sotomayor as being a moralist but as somebody who’s more of a moralist with the leftist position. I think that’s a fascinating interpretation of her approach.
Cass Sunstein
Well, thank you for that. I’m borrowing here from one of the greatest theorists of law, really, in the last hundred years, Ronald Dworkin, with whom I have some pretty strong disagreements, but from whom I’ve learned a great deal. He wrote a book in which the subtitle, I think, was The Moral Reading of the United States Constitution. He was definitely on the left. But let’s just bracket that. His view was things like the abortion right, the free speech right, rights of religious believers, rights of agnostics and atheists, those come from a moral reading of the Constitution. Mind you, he’s making a point about method, but also, he comes out on the left.
So, he says when the court strikes down racial segregation, it’s casting the Equal Protection Clause in its morally best light. You can understand the Equal Protection Clause to allow racial segregation. Maybe separate but equal is equal. There’s nothing in the word equal that forbids the conclusion separate is not equal. But he says the morally preferred reading is that it is not equal protection to separate people. It’s a way of producing second class citizenship. So, Dworkin actually, the most careful defender of moral readings, was on the left. I love your point that now it’s associated more with the right. The word moralist might be the problem here. What Dworkin used and the term I’d use is moral reader, which has a different valence from moralist. It just means what’s the morally preferred view, and freedom of speech from a broad understanding might be that.
Now, there is on the right now, and this is super interesting and it hasn’t caught on enough publicly, a conflict between the originalists who want to bind constitutional interpretation to the meaning at the time of ratification, that’s one camp, with moral readers on the right. Moral readers on the right might think same sex marriage is morally abhorrent. They would authorize the democratic process not to allow it and might forbid the democratic process from allowing it at all. So, there are some people on the right, maybe for some now that they have the votes, where originalism looks like weak tea. It doesn’t get them what they want and Dworkin is their bete noire, someone they really didn’t like, but now is looking like a hero.
He happened to be on the left, but he had the right theory of interpretation some people on the right are thinking. Now, is that showing up on the Supreme Court? Not explicitly yet. It is on the lower courts. I think that some of the conservatives on the court even when they speak in originalist terms, they are moral readers. Because moral reading is a respectable approach to interpretation, we can object on grounds that they haven’t applied it properly or we can object that while it’s respectable, it’s wrong, as they say a contenda.
jmk
So, I hear a lot about textualism. I remember that there’s a quote from somebody who’s on the court right now who said that we’re all textualists now. What does textualism actually mean? I mean, does the court ever or has it ever just flat out ignored the text when it interprets the constitution?
Cass Sunstein
That’s also a fantastic question. So, when someone says, I’m a textualist and then looks at you in the eye with an accusation, I tend to think usually textualism is like saying I believe in gravity. That is, the Constitution forbids states from denying people equal protection of the laws. Does that allow affirmative action? Does it mandate affirmative action? Does it have nothing to say about affirmative action? Does it require welfare programs? Does it forbid welfare programs? Does it say that bans on same sex marriage are not okay? You know, you can stare at the words “equal protection of the law” all you want and you’re not going to have answers to these questions. The problem with textualism is it’s indeterminate.
So, the Constitution grants executive power to a president of the United States. Does that mean the president gets to fire everyone who works for him? Maybe. But the grant of executive power of the United States doesn’t. Textualism won’t tell you what to do. So, across a wide terrain, textualism is correct and there are reasons for that. If we say judges don’t need to pay attention to the text, you don’t really have a constitution anymore. We have some paper. So, hooray textualism and now let’s talk about something serious, now that we’ve agreed to be textualists. But, to your point, there are cases where the text isn’t adherent. Not many, but there are some. I’ll give you one.
The First Amendment says, ‘Congress shall make no law abridging the freedom of speech.’ Suppose the president abridges the freedom of speech or suppose the court abridges the freedom of speech, does the First Amendment disappear? If you were a textualist, I think you kind of have to say yes. But the court doesn’t say that. It understands Congress to be the federal government. Here’s a cooler one. It’s a little exotic, but when the Supreme Court struck down racial segregation in education in a case called Brown v Board of Education, the court also on the same day struck down racial segregation by Congress in a case called Bowling v Sharp.
The court used the Equal Protection Clause to strike down racial segregation in the states. It couldn’t use the Equal Protection Clause within the context of the federal government because the Equal Protection Clause only applies to the states. It doesn’t apply to the federal government at all. So, what does the federal government have as a constraint? It’s got the Due Process Clause. So, the court said the Due Process Clause incorporates the Equal Protection Clause or something like that. Man, for a textualist, that’s crazy talk. How can the Due Process Clause incorporate the Equal Protection Clause? They’re two different ideas. In fact, they’re two separate provisions of the 14th Amendment. One can’t be the same as the other. They’re separate.
So, the ban on racial discrimination by the federal government and sex discrimination by the federal government is counter-textualist. I think we have to either work really, really hard to figure out why that’s consistent with textualism or say we are textualists 98% of the time or we’re textualists, but we’re not crazy.
jmk
So, the examples you gave are kind of on the margins where we abandon textualism. For instance, the First Amendment example is a great one where you’ve got to be a really hard core textualist to say it only applies to Congress and doesn’t apply to the president or the Supreme Court or the bureaucracy. I want to bring this back to the way that you said in the book that we should be thinking about the constitution, which is we should be interpreting the constitution in a way that makes the constitutional order better. If it makes the constitutional order better to just flat out ignore parts of the constitution, is that something that would make sense? Should we abandon entire sections of the constitution if it would actually make the constitutional order better?
Cass Sunstein
There was a time when a young man with my name, that is me, said that that fidelity to the text is just an axiom. We don’t need to defend it. It’s just an axiom. Some people said, ‘Huh? There are some axioms out there. Why is that one?’ I think the young man was wrong. So, the idea that we should be faithful to the text of the Constitution, it’s not built into the structure of the universe and needs an argument. I do agree that it would be horrifying if the justices or if presidents started saying, ‘I’ll obey this part of the Constitution but not that one. Why? Because that makes for a better constitutional order for me to obey this one but not that one.’ The reason the text of the Constitution is binding is not that it’s an axiom, but that way madness lies.
If we didn’t follow the text of the Constitution, what kind of constitutional order would we have? Not really one, because different people with different views about what part of the Constitution they like would feel licensed to abandon some and follow others. It’s a little like some moral prohibitions, like the prohibition on lying. Some of us, I hope most of us, think we’re just not going to lie. Not never. If a friend asks us, do I look nice in this outfit, we might say yes, even if it’s not quite true. But basically, we don’t lie. It’s because if we were asking in individual cases, should I tell the truth or should I lie, then trust and relationships would all disintegrate. The same is true of the constitution.
jmk
So, the way that you believe we should approach the constitution, which is to make the constitutional order better, that should be the guiding principle. Do you think that’s broad based enough that anybody with any different type of interpretation of the constitution can grab hold of that idea and use that as a principle of their own?
Cass Sunstein
Okay, so if we can back up a little bit, you put your finger on the main theme of the book, which is the only way to choose a theory of interpretation is to think what would make our constitutional order better rather than worse. I expect some people to hate that argument and I know from vetting it that some people do hate that argument. But the claim is that’s the only game in town. There’s no other way. You can’t haul out some abstraction, call it interpretation and say, I believe in interpretation, therefore I believe in moral readings. Because other people will say, I believe in interpretation too, and I follow the original understanding. So, there’s nowhere else to go, whether that’s maddening or liberating. That’s the only question we ask. It’s the only question we have.
Now, I think some people will say, I don’t like that question because it makes my preferred theory start to look terrible. I say to them, well, maybe your preferred theory is terrible. Other people will say that my preferred theory rests on some firmer ground than it’s going to lead to a better constitutional order. I say, well, what is that firmer ground? Is it a noun with four syllables? What does it look like? Legitimacy. That has four syllables. But that’s not going to justify any particular theory without getting pretty fine grained.
So, I’ve had an exchange actually with a leading originalist within the last week who, I’m not sure if there is a word in English, there must be one in German, it’s a positive word – I was honored. I think that’s the closest I can get to it. I was honored that this originalist said, ‘I like your book and there’s a lot of it I agree with.’
What I liked about that was that if you’re a believer in the original understanding, you might be prepared to say, ‘Look, I don’t trust the judges. I don’t trust their moral readings. Their conception of democracy might be really screwy. I think stability in the law is very important. I know the original constitution wasn’t broadly democratic, but it’s really good. They hit the jackpot there and if we follow the original understanding, we’re going to have a terrific but imperfect order.’ Now, I strongly disagree with that view. But I salute it, because at least it’s making the view on the right terrain. Then we can talk about whether those things are true.
I would say such things as if you’re an originalist, then freedom of speech, as we live and breathe it, goes in the toilet and that’s a terrible thing. The national government can discriminate on the basis of race and sex. It can say we’re not hiring women here and that’s also a terrible thing. There are a thousand and one or maybe 101 terrible things that follow from originalism. Then the originalist has a number of possible responses. One is, I respect precedent. So, the things you’re worried about won’t happen. I think Justice Barrett would say that, though not Justice Thomas. The originalist could say those terrible things actually won’t happen. My method will stop them from happening. I think Justice Thomas would say that, but these are all very good discussions to have.
jmk
One of the critiques that I’ve heard of your approach is that you’re focused on the outcomes of decisions rather than the process to be able to get there. Do you think that’s a fair assessment and why should we focus on outcomes rather than the process first?
Cass Sunstein
That is fair. If we’re building a hammer or a cell phone, we want the cell phone to work and we want the hammer to drive the nail in. If the process involves some materials or some speed or some ingenuity, but the cell phone won’t work or the hammer is defeated by the nail, that’s not good. So, if we have outcomes that are horrific, brutal and savage, and freedom denying, why would we think that some process is self-justified? So, originalism or moral readings, the only thing that’s good about the process is the outcomes it produces.
Now, it might be you’re going to bite some bullets. I don’t think the Constitution has anything to say about animal rights. It’s really hard to get there and I regret that, but there we are. The Constitution doesn’t say much in support of Franklin Delano Roosevelt’s Second Bill of Rights to include a right to education, right to a job, right to protection if you’re disabled. I think it was a huge advance in American democratic practice, the Second Bill of Rights, but the Constitution doesn’t get us there, not impossible, probably impossible with animals. There are things in the structure of text, precedent, legitimate argument, that mean we’re not going to get every result we like and that’s fine. The question is whether we get too many results we hate, not that we don’t get enough results we love. That’s the only way to evaluate a constitutional order.
Pick a country. I’m randomly going to say Germany. If the judges adopted an approach to interpretation in Germany that led to a much worse democracy, wouldn’t that count very strongly against the approach? What would be said by those who defend an approach that leads a worse approach to democracy? I think only two things. One is democracies and what they care about and the other thing is they think it’s better, not worse. Now we’re off to the races. Now we’re talking. Maybe we’re talking a little lower volume, by the way. One goal of my book is to lower the volume. Not to lower the intensity with which people believe what they believe, but to look at people who believe something very differently with curiosity rather than rage.
jmk
One of the criticisms of the court, probably more from the right than the left, although I think the left is starting to make a case about it in recent years is that the court has begun to use interpretation to change the meaning of the constitution and to find different rights rather than through constitutional amendments. That kind of began with the Warren court. But like I said, the left is bringing up complaints in a similar vein now that we’ve got a much more conservative court. What do you think the line is between when we can find new rights or new meanings in the Constitution through interpretation versus when we really need a constitutional amendment to expand rights or to think about the constitutional order in a different way?
Cass Sunstein
So, we build up from examples. The Supreme Court ruled in 1964 that the First Amendment protects across a wide range of libel of public figures. It had a much more speech protective understanding of words that were, by tradition and long-standing practice, libelous, and you could get damages for them. Was that an amendment or not? Whether it’s amendment depends on our theory of interpretation. If our theory of interpretation is originalist, then New York Times v Sullivan, that’s the case I’m talking about, was amendment and not interpretation. If our theory of interpretation is textualist, then the case is plausibly interpretation, not amendment. So, fidelity of the text is a precondition for something being interpretation, not amendment subject to the qualifications we discussed earlier.
Now, if there’s something that, by the text read in light of tradition, has been understood for 60 years, then we have a discussion to be had whether a novel interpretation of a text that defies tradition as an amendment. I don’t think that’s correct. So, in 2008 the court ruled for the first time in the nation’s history that the Second Amendment protects an individual right of gun ownership. Was that constitutional amendment? The defenders of the decision typically say, ‘What kind of crazy question is that? It’s a return to the original understanding. So, that can’t be amendment.’ Okay, let’s ask first, is, did the court have the original understanding right? Not at all clear that that’s true, so let’s just suppose it’s true. The court didn’t have the original understanding right.
Let’s suppose the best understanding of the Heller case, protecting the individual right to own guns, is that the court was speaking for something in our culture that had kind of frozen and concretized over a period of decades so that this Second Amendment right is a little like the abortion right and like the free speech right. Then it wouldn’t be amendment either. It would be legitimate interpretation. This is a way of saying that what constitutes an amendment depends on our theory of interpretation. Now, if the court ruled that the electoral college is abolished, that would be an amendment, because there’s no theory of interpretation that gets us there. If the court ruled that sex discrimination is fine, I’d say that would be interpretation, not amendment. Those who have strong views of protection of precedent, stare decisis, would say that’s amendment.
So, this is all a long-winded way of saying you can’t know whether it’s amendment without choosing a theory of interpretation first.
jmk
It sounds like you’re describing an amendment as something that the court can do. I guess I was thinking of amendment as the process of actually changing the text of the Constitution through the formal process.
Cass Sunstein
Yeah, so yes to the idea of amendment as changing the constitution through the formal process. But I think if the court departs from a legitimate theory of interpretation and just changes the document, it is illicitly amending the constitution. I’m hard pressed to think of cases that did that, but the affirmative action case very recently is a plausible candidate for the accusation the court amended the constitution, because in my view, the legitimate theories of interpretation don’t get you there. But I realize reasonable people disagree.
jmk
I guess what I’m wondering is what is the line if people want a specific outcome of the constitution, when should we be approaching it through the amendment process versus other means. When should we be making the arguments that it’s just an interpretation of the constitution?
Cass Sunstein
Well, I guess it’s pragmatic. Isn’t it? Suppose my boss, Thurgood Marshall, was asked in 1948, ‘Why don’t you amend the constitution to get rid of racial segregation?’ I think he’d say, first, good luck with that and second, the interpretation I’m trying to get the court to accept is correct. It’s not amendment. Now if you want to change the electoral college, that’s not feasible to get to through interpretation. The text doesn’t allow you to do that. If you want to get rid of, as some people do, the individual right to bear arms, the court could get there through interpretation. There were majority or even unanimous court saying that there was no right to bear arms at the individual level until quite recently.
So, it could reverse that, but it’s not looking likely. The likelihood you’d get there through the court is very low. The likelihood that you’d get there through constitutional amendment, this is my incompletely informed empirical projection, is also very low. So, you might think that if you get it through the constitution itself, you can give it more stability than you can through judicial interpretation and that’s true. The Equal Rights Amendment was supported by many who didn’t not notice that the Supreme Court was giving the same interpretation of the Constitution that the Equal Rights Amendment would compel. But they still thought that the Equal Rights Amendment freezes and makes it permanent and that’s true.
jmk
We’ve talked a little bit about originalism. You’ve mentioned that you’re not an originalist, but I have heard you say that your mind has changed on the idea of originalism through this project. How has your mind changed about this theory of originalism? What do you think about it today that maybe you didn’t think about it yesterday?
Cass Sunstein
So, I understand better and doing this book really helped me. I think of them at their best as saying that if you wore a veil of ignorance and didn’t know anything about the court, you didn’t know if it was left or right, you didn’t know anything about democracy, you didn’t know anything about anything, what theory of interpretation would you choose? They argue you’d choose originalism and they argue some combination of the original constitution as originally interpreted is really good. It’s not perfect. Any of us could do better by our lights, but it’s really good and it has a disciplining effect on the judges that prevent them from doing terrible things.
So, some originalists have said to people on the left in the last couple years, you should join us because if you’re not originalist, these conservatives are going to be going crazy. You’ll be really upset. That’s more of a political version of the academic argument that originalism makes sense in our world. Now, I don’t think it’s true. I don’t think it’s right. But I understand it much better. I’d also make a distinction between the practitioners of originalism on the judiciary and the defenders of originalism who are trying to put it in its best light.
For the practitioners of originalism, it dismays me that their views overlap massively with the views of the right wing of the Republican Party. It would be a miracle if the original understanding of the Constitution just landed time and time again with the views in 2023 of the right-wing of the Republican Party. That would be too amazing a coincidence. That’s more than troublesome. But I get the academic defense of originalism. I don’t agree with that.
But I’m hopeful that discussions in the next 10 years will be more productive and less shouting than in the last 10 years where some originalists used to be arguing, ‘Ours is the only legitimate approach. There are adjectives about democracy and legitimacy and interpretation to make our case.’ I think they’re decreasingly making that argument and people on the left saying, you’re just politicians dressed up as Madison and Hamilton. You just want the political thing. That is unfair to many current theorists of originalism.
jmk
Before we go, I would really be amiss if I didn’t take the opportunity to ask you. about your favorite Supreme Court decision that is probably overlooked. Do you have one that really comes to mind that you think really kind of brings out some of these different ideas from your book that people might not automatically know offhand?
Cass Sunstein
It’s a case called Barnett, which is the compulsory flag salute case in which my favorite Supreme Court justice ever, Robert Jackson, who I think knew everything that we’ve been discussing said compulsory unification of opinion achieves only the unanimity of the graveyard and that’s good. That’s more than good and it’s more relevant now than at any time since the 1940s.
jmk
Cass, thank you so much for joining me today. I’m going plug the book one more time. It’s How to Interpret the Constitution. Thank you so much for writing it. Thank you so much for joining me today.
Cass Sunstein
Thank you. It’s a great pleasure. I really enjoyed it.
Key Links
How to Interpret the Constitution by Cass Sunstein
The World According to Star Wars by Cass Sunstein
Follow Cass Sunstein on Twitter @CassSunstein
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Joseph Fishkin on the Constitution, American History, and Economic Inequality
Donald Horowitz on the Formation of Democratic Constitutions
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