On avoiding foundational questions: a reply to Andrew Coan.

• Author: Sunstein, Cass R.
• Position: Response to article in this issue, p. 213

In both legal practice and legal scholarship, it is sometimes best to proceed without attempting to answer the foundational questions. Originalists can inquire into the original public meaning of the Equal Protection Clause without defending originalism. Economic analysts of law can ask how to promote efficiency without defending the view that the law should aim at efficiency. It would be useful to know how utilitarians and retributivists would approach punitive damage awards, without resolving the question whether we should be utilitarians or retributivists. Here, as elsewhere, a division of labor makes good sense. Some people (or some works) take certain judgments for granted and proceed from there; other people (or other works) try to resolve the deepest questions.

On some occasions, the Supreme Court seems to have taken account of the risk or reality of public outrage. (1) Surprisingly, there has been little analysis of the question whether the Court has been right to do so. (This may be the only area of public law in which the positive literature (2) is more developed than the normative literature!) It would seem to be useful to begin by asking how those with different understandings of constitutional interpretation might approach the problem. At first glance, originalists would seem unlikely to approach public outrage in the same way as "moral readers"; (3) committed consequentialists (4) are likely to have a distinctive view. But perhaps these conclusions are too crude. Perhaps the distinctions are less sharp than we suppose. Perhaps an exploration of different approaches will reveal some surprises.

In my essay on the question, (5) I attempted to explore how different judges, with different approaches to constitutional law, might think about two separate reasons for judicial consideration of outrage: the consequentialist and the epistemic. Perhaps judges should consider outrage with the thought that if they fail to do so, the consequences of their rulings might turn out to be very bad. Or perhaps judges should consider outrage on the ground that if the public feels so intensely, their own conclusions might well be wrong. Learned Hand famously wrote that "[t]he spirit of liberty is the spirit which is not too sure that it is right," (6) and perhaps judges should pay attention to public outrage out of modesty about their own conclusions. Not surprisingly, the consequentialist and epistemic arguments will be received differently by those with different approaches to constitutional meaning.

In his illuminating response, (7) Andrew Coan makes a number of valuable suggestions, but two seem to me primary. The first is that it is difficult to take a position on the relevance of consequences without taking a position on consequentialism. (8) Avoiding any such position, my own argument does have a minimalist character; it explores how those with different approaches will respond to outrage without taking a stand on those approaches. Coan asks, reasonably enough: how can we know how judges should proceed without knowing what approach is right? (9) Coan's second suggestion is that a good reason to take account of public outrage is to show respect for democracy. (10) In his view, the consequentialist and epistemic arguments are incomplete; democratic...