Sunstein describes four approaches to U.S. constitutional law: perfectionism, majoritarianism, minimalism, and fundamentalism. Perfectionism is the more liberal approach, following the text but also making decisions following their own views of freedom of the press, equal protection, etc. It was the main approach of the Warren Court.

Majoritarians believe that unless there has been a clear violation of the Constitution, the "courts should defer to the judgements of elected representatives." (p. xii). Oliver Wendall Holmes was a majoritarian, but there are few if any on the Supreme Court today.

The third approach is minimalism. Miinimalists rule narrowly, one issue at a time, rarely if ever making broad rulings with wide application.

Finally the last approach is fundamentalism. "in their view, the founding document must be interpreted to mean exactly what it meant at the time it was ratified". (p. xiii) "But some fundamentalists have not hesitated to betray their commitment to the original understanding when the historical evidence points to results they dislike. Their willingness to do so suggests that some of the time, they are working for a partisan ideology rather than law." (p. xiv) Clarence Thomas is the foremost of the fundamentalists, willing to write broad decisions that overturn precedent. Scalia is similar, but less willing to overturn precedent.

A summary, from chapter 10: "In the abstract, fundamentalism appears both principled and neutral. But too much of the time, fundamentalists offer an unmistakably partisan vision of the Constitution. Their Constitution casts serious doubts on affirmative action programs, gun control laws, restrictions on commercial advertising, environmental regulations, campaign finance reform, and laws that permit citizens to sue to enforce federal law. As many fundamentalists understand America's founding document, it raises doubts about the Environmental Protection Agency, the Occupational Safety and Health Administration, the Securities and Exchange Commission, the Federal Communications Commission, and many other federal agencies. It allows the President extraordinarily wide authority to wage war even at the expense of the most basic liberties. It contains no right of privacy. It allows the national government to discriminate on the basis of race. It permits states to benefit religious believers and perhaps even to establish churches. It imposes sharp limits on Congress's power to regulate interstate commerce and to enforce the guarantees of the Fourteenth Amendment. Most ambitiously, fundamentalists want to move in the direction of some Lost Constitution or the Constitution in Exile - the document as it was understood in the distant past. " (p. 243)

"Fundamentalists claim to embrace originilism, and to their credit, some of their conclusions do fit well with the original understanding of the Constitution. But they write as if their approach is the only legitimate approach to interpretation - as if those who reject the original understanding, and refuse to be bound by the views of those long dead, are refusing to do law at all. This is a myth. The Constitution doesn't call for fundamentalism. Nor have fundamentalists confronted the serious conceptual difficulties with following the 'original understanding' of a document that was written centuries ago. And they have been evasive rather than candid about the radicalism of their approach, which would threaten to undo much of the fabric of our democracy and our rights." (p. 244)

Sunstein advocates a minimalist approach, which produces change over time but slowly.

I can't say I understand all the details of Sunstein's arguments, but it is a surprisingly readable book for the layperson, and on a really important topic. ( )

I received Cass R. Sunstein's Radicals in Robes after Harriett Miers was nominated for the U.S. Supreme Court. I completed it less than 48 hours before "Miers asked Bush" to withdraw her nomination after having been skewered by the right wing of Bush's base. Though Sunstein wasn't writing specifically about Miers or the nomination process, his analysis is pertinent to where we go from here.

Sunstein, who teaches at the University of Chicago Law School, attempts to elevate the discourse over federal judges beyond litmus tests and paper trails to analysis of theories of constitutional interpretation. He identifies four major theories of constitutional interpretation and analyzes many of the today's hot button issues through their prisms.

The four approaches very briefly summarized are: (1) fundamentalism, which believes the proper approach to constitutional law is discerning and applying the intent behind the Constitution when it was ratified in 1789, the intent behind the Bill of Rights when it was ratified in 1791 or when the Fourteenth Amendment (through which much of the Bill of Rights has been applied to the states) was adopted in 1868; (2) perfectionism, whose adherents believe the Constitution should be interpreted in broad terms so that its ideals are fully realized and the law is made "better"; (3) majoritarianism, an approach little used today that believes majority rule should impact constitutional interpretation and, thus, will defer to decisions made by the executive and legislative branches as long as they do not clearly violate the Constitution; and, (4) minimalism, which believes judges and courts should try to avoid the deep core questions, such as the role of religion in society, and render rulings on narrow grounds tailored to the precise issues and facts presented by any case rather than making broad pronouncements.

Sunstein excoriates fundamentalism and argues it is a threat to established precedent and American society as a whole. While he is less critical of perfectionism, he also sees it as having inherent failings. Sunstein advocates minimalism, moving constitutional law by, to use his terms, nudges rather than earthquakes. He believes the real Radicals in Robes are fundamentalist judges appointed to the bench by the Reagan, Bush I and Bush II administrations. He contends these fundamentalists tend to be wedded to a right wing agenda of, among other things, overturning any concept of a constitutional right to privacy, abolishing affirmative action, invalidating any gun control laws, and reducing or removing the "wall" between church and state judicially recognized under the Establishment Clause. The most notable proponents currently are Supreme Court Justices Antonin Scalia and Clarence Thomas.

Balance of review at http://prairieprogressive.com/?p=566