On the surface, the topic of this book would appear to entail a fairly dry analysis of a limited area in the interpretation of the U.S. Constitution: under what circumstances should the views of “many minds” (i.e., the consensus of large groups of people) influence the interpretation by judges of the Constitution? However, in evaluating three different “many minds” scenarios, Sunstein also discusses how the Constitution should be interpreted more generally, and in the process he introduces us to a world in which there are few certainties and many conflicting theories. In the end, despite the overall clarity of his writing, this book becomes a difficult read, but nevertheless a very rewarding introduction to the issues faced by the Supreme Court (and the people) in interpreting the Constitution, which are just as relevant today as they were when the book was published in 2009—a distant date considering the speed of change in American politics and the Supreme Court in the last eleven years.

Sunstein identifies the following three possible sources of “many minds” influence on the Constitution. First, traditions presumably reflect the judgments made by “many minds” in the past, and he divides this into a general respect for traditional practices as articulated by the philosophy of Edmund Burke and the specific, Supreme Court-created tradition of “substantive due process.” “Substantive due process” refers to fundamental rights like privacy, not specifically mentioned in the Constitution, that the Supreme Court has determined over the years should be protected from intrusive or unreasonable government interference, such as the right of a married couple to use contraceptives (Griswold), the right to marry a person of another race (Loving) and the right to control the education of one’s own children (Pierce). (As an aside, a legal background in constitutional law certainly would be helpful in absorbing at least certain parts of Sunstein’s discussion, but this is not essential given his careful efforts to explain every step of his analysis). Second, Sunstein refers to the views of the public, which he designates as populism or popular constitutionalism and which clearly raise a rich source for the views of “many minds.” Finally, he examines the laws and practices of other nations, which he designates as “cosmopolitanism.” His “main goal is to show when and why many minds arguments are strong, and when and why they are not.”

In the course of his analysis, Sunstein identifies three pervasive problems with “many minds” approaches. First, does the “many minds” source actually address the proposition before the court and how is the court to determine this (e.g., have circumstances changed)? Second, is the “many minds” source subject to “systemic bias” and thus an unacceptable input into a court’s decision? Third, the “many minds” may not reflect independent judgment of individuals in a group but rather a “cascade” of conformist views reflecting perceptions of what others (or a leader) thinks. Misapplication of the “many minds” approach can, for example, result in a denial of the equal protection of the law, especially where systemic bias is involved.

A key tool in his analysis of many minds approaches is the “jury theorem” originally developed by Marquis de Condorcet to measure the likelihood that a group of individuals will reach a correct answer. “[T]he probability of a correct answer, by a majority of the group, increases toward 100% as the group gets bigger. The key point is that groups will do better than individuals, and large groups better than smaller ones, so long as two conditions are met: (a) majority rule is used and (b) each person is more likely than not to be correct.” In situations where there is less than a 50% probability that each person is likely to be correct (e.g., because of systematic bias, ignorance, etc.), the likelihood of a correct answer by a majority of the group decreases as the group increases in size.

He concludes that traditionalism deserves a great deal of support in the areas of separation of powers, federalism and gun rights, but less so for substantive due process where “minimal rationalism” is the better approach. The establishment clause concerning religion is an intermediate case: the court should accommodate religious practices that have persisted for many years where most people agree (e.g., use of the words “under God” in the Pledge of Allegiance) but not in other areas where accommodation to religious groups might impose a practice on those who have lacked the power to resist it.
With respect to cosmopolitanism, he concludes it provides a weak basis for a many minds interpretation of US constitutional law given the depth of US constitutional experience and the burden involved in determining the relevance of foreign law. He thinks this approach may be more useful for new countries attempting to establish constitutional democracies.
Popular constitutionalism falls in the middle. In certain circumstances, a court should take into account consequentialist (including public backlash) arguments concerning the possible effects of a controversial decision. (Interestingly, Sunstein’s main example, writing in 2009, is that the Supreme Court “should not now rule that states must recognize same-sex marriage even [if] it believes that the Constitution requires that result as a matter of principle.” Of course, this is exactly what the Supreme Court did rule six years later in 2015 in the case of Obergefell v. Hodges.)

In evaluating his three many minds approaches, Sunstein is careful to take into account relevant standards of constitutional interpretation. And this is where the reader may feel at times to be at sea. Sunstein tells us that the Constitution itself provides no instructions for its interpretation. Moreover, he then contrasts two broadly different approaches: that of Madison, who felt that the Constitution should be relatively fixed subject only to rare changes such as through the complex procedure to make amendments, and that of Jefferson, who expressed a wish that each generation of the public should rethink the Constitution anew. Sunstein notes the general consensus that Madison’s view was closer to the actual development than was Jefferson’s, but that Jefferson has also had his way “through social practices and interpretations that render the Constitution very different from” that of the founders.

In the absence of interpretive instructions in the Constitution itself, in his chapter entitled Preliminaries, Sunstein summarizes the principal interpretations followed in varying degrees by courts, which he will then bring to bear as relevant in specific discussions of his three categories of “many minds.” These interpretations include Thayerism (deference to legislation unless it is plainly and unambiguously in violation of the Constitution), originalism (applying the original public meaning of the text of the Constitution), minimalism (decisions that take small steps in expanding or changing the meaning of the Constitution) and perfectionism (construing the Constitution in a way that both fits with it and makes it the best it can be). Other factors in the mix are rationalism (i.e., what is required by moral reasoning as opposed to tradition) and stare decisis (following the precedent of earlier judicial decisions). For example, Sunstein concludes that Burkean minimalism is most plausible for federal judges when three conditions are met: (a) originalism would produce unacceptable consequences (e.g., by rejecting long standing practices such as the establishment in the 20th century of independent agencies like the Federal Reserve and the SEC), (b) long-standing traditions or practices are trustworthy and (3) there is great reason to be skeptical of the rule-evaluating capacity of judges.

He also characterizes the interpretive approaches of contemporary and past justices of the Supreme Court. Thus, Ginsberg, Stevens and Breyer are generally rational minimalists, building on precedent and rational argument. Brennan and Marshall were liberal visionaries with a clear view of where they thought constitutional law should go and would offer ambitious arguments to get there. Scalia and Thomas are originalists but also conservative visionaries, calling for fundamental change. Roberts and Alito are generally characterized as minimalists with a Burkean deference to past practices that contain wisdom not available to an individual’s private reflections.

Given the plethora of interpretive approaches, the question inevitably arises as to what the standard should be in deciding the best approach among the different interpretations and the “many minds” analysis. Sunstein adopts a pragmatic approach turning on the consequences that follow from using a specific approach in interpreting the Constitution in specific circumstances. Thus, different approaches are appropriate in different contexts, i.e., a pragmatic standard does not declare one interpretation to be the sole method. In some cases, Burkean traditionalism might have the best result; in others rejection of tradition on rational grounds is the best. Of course, evaluation of consequences also requires a standard to determine good consequences from bad consequences. In this regard, Sunstein comes down more on the side of liberal and democratic values than do conservative interpreters of the Constitution, but he also is very sensitive to political repercussions of potentially unpopular decisions that, while judges might see them as morally right, could cause political backlash or instability. This is why in 2009 he recommends that the Supreme Court not recognize same sex marriage.

Sunstein brings to bear not only constitutional thought but also political philosophy, economic theory, psychological analysis and American history in his analysis of “many minds.” He also illustrates his discussion with numerous examples of past and contemporary Supreme Court decisions that one could not begin to exhaust in a short review. The result is a book that is of great interest in our current period of constitutional uncertainty.

Sunstein drew on law review articles in putting this book together. This may explain certain inconsistencies in approach and organizational incoherencies. For example, in the chapters on populism and cosmopolitanism, Sunstein lists several constitutional issues on which he then analyzes the impact of the populism and cosmopolitan approaches. He does not do this in the traditionalism chapters. He also has the virtue of being very scrupulous in looking at issues from all sides, but this can frustrate the reader trying to follow the line of the argument (on the one hand this, on the other hand that) and also leads to some repetition as arguments repeat themselves in the context of different issues. However, he is not shy in providing his own conclusions at the end of the back and forth, even though in some cases they may be tentative. ( )

Sunstein, a Harvard law professor, examines various frameworks of constitutional interpretation (traditionalism, populism, cosmopolitanism) using what he calls a 'many minds' approach, highlighting the uses and abuses of each, and the cases where one approach or another might be better suited for the circumstances. He argues that any interpretive approach is difficult to use in the abstract, but can be worthwhile in certain concrete circumstances. Rather jargony and fairly dense, this book will likely be of more interest to constitutional scholars than to a general audience. ( )