The Undead Constitution.

Menashi, Steven

CASS R. SUNSTEIN. A Constitution of Many Minds: Why the Founding Document Doesn't Mean What It Meant Before. PRINCETON UNIVERSITY PRESS. 240 PAGES. $27.95

PARTISANS OF THE view that the Constitution is not a fixed but a "living, breathing document" often point to "the dead hand problem." Why, they ask, should contemporary majorities be governed by the dead hand of the past? If democracy is our lodestar, why allow decisions made two centuries ago by the Framers and ratifiers of the Constitution to prevent today's Americans from enacting their own policy preferences into law? Instead, living constitutionalists urge judges to discount the original, 18th-century understanding of the Constitution and to reinterpret the document in light of contemporary mores and needs.

Of course, a fully living Constitution would not confine future generations either to the original understanding of the Framers or to the written text they composed. Instead, it would be free continually to evolve, like the unwritten British constitution, without forcing upon later generations a never-changing constitutional text into which they must thrust their ever-changing constitutional values like a square peg into a round hole.

Thomas Jefferson, whom Tocqueville called "the most powerful apostle that democracy has ever had," would not countenance any sort of permanent constitution, even an evolving one. He insisted that every constitution must naturally expire after 19 years. "If it be enforced longer, it is an act of force and not of right," wrote Jefferson. "The earth belongs always to the living generation ... the dead have neither powers nor rights over it."

Most living constitutionalists do not go that far, preferring to retain the original constitutional text but infusing 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.

The undead hand problem arises early on in Cass Sunstein's brief for the living Constitution, A Constitution of Many Minds. "Traditionalism is quite attractive in the domains of separation of powers, federalism, and gun rights. In those domains, what has been done in the past is highly relevant to what should be done in the present," writes Sunstein. "But when we are speaking of equality, traditionalism has much less force. In that domain, the present knows more than the past," and the latter should yield to the former.

It remains unclear why Sunstein has decided the present knows more than the past with respect to equality but not the other three domains. Many regard contemporary American federalism as outmoded and decry the disproportionate influence of "small states" in the Senate and the Electoral College precisely because it violates notions of equality, such as "one person, one vote," that Sunstein claims we moderns know so much more about. Nor is it clear why, in the age of Columbine and semiautomatic handguns, Sunstein does not suggest the present may know more about gun rights. According to Sunstein, "the meaning of the Constitution must be made rather than found." But one would expect a different Dr. Frankenstein to strike an entirely different balance between the living and the dead in making his Constitution.

The meaning of the Constitution is settled by the reader's "account of interpretation" that must be applied to the text, according to Sunstein. One must choose an account that will "make that document as good as it can possibly be" given the circumstances in which it is applied. One would prefer an approach of judicial restraint in a world where democratic processes work "exceedingly fairly and well" and judicial decisions are "highly unreliable ... from the standpoint of political morality." One would choose originalism if "the original public meaning of the Constitution is quite excellent, in the sense that it ensures well-functioning institutions and protects a robust set of rights, in a way that fits with a reasonable account of both democracy and freedom" and if judges untethered to the original public meaning "would do a great deal of harm." One would adopt an incrementalist or "minimalist" approach if the original public meaning "is not so excellent, in the sense that it does not adequately protect rights, properly understood, and in the sense that it includes understandings about institutions that become obsolete over time, as new circumstances and fresh needs arise" and the democratic process sometimes "permits significant injustices"; meanwhile, judges will do "very well if they build modestly and incrementally on their own precedents" but "will do poorly" if they act more boldly. Finally, one would favor a "perfectionist" method in which judges select the interpretation "that makes the document and the existing law the best that they can be" if judges with such discretion "would generate a far better account of rights and institutions, creating the preconditions for both democracy and autonomy" than would judges with different approaches.

As his discussion makes clear, Sunstein's choice of an interpretive method does not depend upon the method's relationship to the Constitution but upon the method's ability to use the Constitution to promote fairness, "political morality," "a reasonable account of both democracy and freedom," "rights, properly understood," and "the preconditions for both democracy and autonomy." He does not define any of these things, nor does he explain what it means for judges to do "poorly" or "well" or to make the Constitution "good." It is clear, however, that some approaches would make the Constitution bad: Sunstein rejects originalism because "originalists tend to say nothing about the difficulty in squaring their approach with foundational commitments of our current constitutional order"--which, Sunstein has already assumed, come from somewhere other than the original public meaning of the Constitution.

By asserting that an interpretive method must be judged by "whether it would make our constitutional order better or worse," Sunstein excludes the view, generally associated with originalism, that proper interpretation would seek to construe the Constitution not to make it better or worse, but to apply it as good or bad as it actually is. Sunstein assumes that the Constitution, properly understood, would reflect contemporary values and the task of interpretation is to align the written text with those shifting norms. His selection of an interpretive method follows from that assumption.

Sunstein starts from the proposition that "constitutional change has occurred through the judgments of many minds and succeeding generations ... through an incremental process" of "evolving traditions, rather than sudden breaks." He then posits that the best interpretive method would make the Constitution "better" from the perspective of those evolving moral commitments. Then, he applies the "better" standard to the circumstances of evolving moral progress and-voila!--minimalism emerges as the preferred interpretive approach.

But the "Constitution" he aims to interpret is not the written document sitting in the National Archives. Rather, the "Constitution" consists of the judgments about political morality that have been made by many minds over time. Thus, Sunstein resolves the undead hand problem by concluding that you cannot find the meaning of the Constitution by reading it; writing the text was only the first step of creating the Constitution. Sunstein counts among the founders of the Constitution "not merely Madison and Hamilton" but also Susan B. Anthony, Franklin Roosevelt, Martin Luther King Jr., Ronald Reagan, Gloria Steinem, and "countless other public figures" as well as ordinary citizens whose moral and political judgments helped determine the foundational commitments of our constitutional order. It would be pretty silly to consult only the work of Founders such as Madison and Hamilton, Sunstein suggests, because "our ancestors knew much less than we do ... because our stock of experience is so much greater than that of those who preceded us."

To interpret the "Constitution of Many Minds" Sunstein does not consult the constitutional text or the writings of its Framers but seeks answers to moral and political questions by examining the accumulated judgments of many minds over time. That is, Sunstein finds constitutional meaning in mass opinion or, as he prefers to call it, "the wisdom of crowds." "Consider," writes Sunstein, "the usual accuracy of the majority or plurality on the television show Who Wants to Be a Millionaire? Because many people are more likely to be right than wrong, and because the errors are likely to be random, it should come as no surprise that on most questions, most people get it right."

If it works on television, Sunstein reasons, why not in constitutional interpretation? To support this idea, Sunstein invokes the Condorcet Jury Theorem, an idea developed by the French mathematician Nicolas de Condorcet in the 18th century. Suppose many people are asked the same question, each person is more likely than not to answer correctly, and each person makes his own independent answer. Under these conditions, the theorem holds that the probability of receiving a correct answer from the majority of the group increases toward 100 percent as the group gets bigger. Given the likelihood that many minds are more likely to reach correct answers, Sunstein suggests that when many people have accepted a particular view of a moral or political issue, the Supreme Court and others thinking about the meaning of the Constitution might want to consult that view.

IT IS WORTH noting, not simply for the historical contrast, that this view reverses the original understanding of American constitutionalism, the aim of which was chiefly to forestall a "tyranny of the majority" or an otherwise overbearing majority faction. Rather than progress in morality, The Federalist speaks of "great improvement" in "the science of politics," which enabled "a republican remedy for the diseases most incident to republican government." A carefully designed constitutional structure could establish a popular government that would also "refine and enlarge the public views" by channeling those views through a system of representation oriented toward the public good. In this way, constitutional government both reflects and shapes public opinion: "It is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government." The "passions of men will not conform to the dictates of reason and justice, without constraint," so containing those passions is what allows a government both to rest upon popular consent and to orient itself toward justice and the common good.

The Federalist does not disagree with the Condorcet Jury Theorem so much as contend that its preconditions rarely apply. As Madison wrote, contra Condorcet, "the more numerous an assembly may be, of whatever characters composed, the greater is known to be the ascendency of passion over reason." The Condorcet Jury Theorem holds only when individuals make independent choices. To the extent that groupthink prevails, the theorem has nothing to offer. Madison suggested that was the normal condition: "If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much on the number which he supposes to have entertained the same opinion. The reason of man, like man himself, is timid and cautious when left alone, and acquires firmness and confidence in proportion to the number with which it is associated." The people are typically moved by passion and not by reason, so if the people have consented to a rational constitution it would be unwise to jeopardize that consent by inviting a public reconsideration of foundational constitutional commitments.

Sunstein disagrees with The Federalist because he does not see the Constitution as establishing a form of government but merely as providing another instrument of popular will. In other words, he expects constitutional government to reflect the views of the people but not to refine those views or to shape the character of the citizenry. Accordingly, he regards the Constitution not so much as an institutional structure but as a set of normative propositions. There is little reason, then, to defer to the normative judgments of the past when we can get them right in our own time.

Sunstein's appeal to the Condorcet Jury Theorem suggests he has greater faith in the public's capacity to reason independently. But the theorem, even in Sunstein's account, turns out to be of limited usefulness to constitutional interpretation. Sunstein suggests, for example, that a court might defer to established traditions when considering constitutional meaning because a tradition represents a viewpoint accepted by many minds over time. Yet he concludes that many traditions do not reflect wisdom but "power and injustice." A tradition may be established because of shared prejudices, in which case each individual mind was not more than 50 percent likely to be correct. A tradition may be established through social conformism, in which case each mind did not reach an independent conclusion. In either case, the preconditions of the theorem do not hold.

Sunstein does not explain how one determines whether a tradition is legitimate. He says, for example, that a practice of racial discrimination cannot be justified upon the ground that it is a longstanding tradition. But that is because he has already decided, before evaluating whether the Condorcet Jury Theorem applies, that racial discrimination is unacceptable. Indeed, in determining that the tradition of discrimination is unreliable because it rests upon impermissible prejudice, he simply repeats his prior judgment that racial prejudice is not "correct" from the perspective of political morality. It is difficult to see what the Condorcet analysis adds to that initial conclusion.

Likewise, Sunstein says we should defer to tradition in the area of separation of powers: If the Congress and presidents have settled on certain accommodations in their interactions over time, it makes sense for a court to defer to the practice--a reasonable enough point, but not one to which Condorcet adds much. What matters most is the prior conclusion that it is desirable to adopt an evolutionary and deferential approach to separated powers.

Sunstein has provided no criteria for deciding whether each of the many minds is more than 50 percent likely to be correct. We believe they are incorrect with respect to racial discrimination because racial discrimination is wrong. We believe they are correct with respect to executive-legislative relations because we think an evolutionary approach makes sense in that area--not because congressmen and presidents are more likely than not to be "correct." (Indeed, it is not obvious their judgments should be trusted; legislators and executives might collude in evading structural constraints on their behavior.) In this way, every application of the Condorcet Jury Theorem rests upon a prior determination of whether we believe the relevant minds are more likely than not to be correct--that is, whether those minds will reach the same conclusion we already have. This initial determination, and not the practice of "many minds over time," is what Sunstein relies upon for his moral and political judgments.

This is most obvious when Sunstein considers whether judges should take account of current public opinion, such as the prospect of a public backlash against their rulings, when making judicial decisions. He mentions the now-prevalent public view that the Second Amendment confers an individual right to owns guns. Many "prominent specialists" reject this view, Sunstein notes, and it was not commonly held until recently. In fact, "the energetic efforts of meaning entrepreneurs" from the National Rifle Association pressed this view of the Second Amendment and produced the shift in public understanding. Thus, the public simply responded "to the beliefs of only a few" when it formed an opinion about the Second Amendment. Since this judgment was not based upon a large number of independent judgments, the Condorcet Jury Theorem holds it is not entitled to deference. Rather, Sunstein says, a judge may disregard the view of the majority and adopt that of "prominent specialists"--not the specialists who convinced the public, of course, but those in the academy who Sunstein believes are actually correct.

In another example, Sunstein notes that "a bias might distort people's judgments" in responding with outrage to a court decision lifting a ban on polygamous marriage or striking "under God" from the Pledge of Allegiance. Somehow Sunstein is more apt to discover "distortions" when the public dissents from contemporary liberalism.

Sunstein appropriately asks whether it is possible for a hypothetical judge to know, from a neutral standpoint, "when a bias, a cascade, or polarization is at work" and the Condorcet Jury Theorem does not apply. His answer is less than satisfactory: "Perhaps his theory of interpretation permits him to consider certain judgments to be 'biases' in a constitutionally relevant sense." If most people oppose same-sex marriage "on moral grounds," for example, "those very grounds are illicit under the proper theory of (say) the equal protection clause." (Even though Sunstein's whole idea was that the majority is more likely to reach correct moral judgments.)

Alternatively, if a "relatively weak group" is not outraged by a decision, but an "identifiably powerful group" is outraged, the judge may "inquire into the social and political dynamics by which the public thinks as it does" and conclude that the powerful group's opinion is not valuable because it is likely the product of bias.

As with the initial selection of a "theory of interpretation," Sunstein has again stacked the deck. These examples even posed as abstract hypotheticals amount to blatant justifications for a judge to impose his own personal prejudices under the cover of law. When packaged in the name of the Condorcet Jury Theorem, the practice is even more sinister than straightforward judicial fiat because it provides an apparently respectable scientific patina for dismissing opposing viewpoints as illegitimate and unworthy of consideration. Sunstein ultimately agrees that judicial discretion cannot be so unconstrained; he says judges ought to consider public opinion "in rare but important circumstances." To guide that discretion, however, Sunstein offers the unhelpful principle that the moral convictions of the public should be consulted "to the extent that those convictions provide information about the best interpretation of the Constitution."

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.

Steven Menashi is an Olin/Searle fellow at Georgetown University Law Center.