Burkean minimalism.

• Author: Sunstein, Cass R.

Burkean minimalism has long played an important role in constitutional law. Like other judicial minimalists, Burkeans believe in rulings that are at once narrow and theoretically unambitious; what Burkeans add is an insistence on respect for traditional practices and an intense distrust of those who would renovate social practices by reference to moral or political reasoning of their own. An understanding of the uses and limits of Burkean minimalism helps to illuminate a number of current debates, including those involving substantive due process, the Establishment Clause, and the power of the president to protect national security. Burkean minimalists oppose, and are opposed, by three groups: originalists, who want to recover the original understanding of the Constitution; rationalist minimalists, who favor small steps but who are often critical of traditions and established practices; and perfectionists, both liberal and conservative, who want to read the Constitution in a way that fits with the most attractive political ideals. The argument for Burkean minimalism is strongest in domains in which three assumptions hold: originalism would produce intolerable results; established traditions are generally just, adaptive to social needs, or at least acceptable; and the theory-building capacities of the federal judiciary are sharply limited. Burkean minimalists face a number of unresolved dilemmas, above all involving the appropriately Burkean response to non-Burkean, or anti-Burkean, precedents.

TABLE OF CONTENTS I. INTRODUCTION II. MINIMALISMS A. Definitions B. Burkean Practices and Burkean Judgments C. Two Kinds of Minimalism III. THE CONDITIONS FOR BURKEAN MINIMALISM A. Originalists and Burkeans B. Perfectionists and Burkeans C. Burkeans, Rationalists, and "the Wisdom of the Cradle" Are We the Ancients? D. The Burkean Dilemma E. Unfinished Business CONCLUSION And first of all, the science of jurisprudence, the pride of the human intellect, which, with all its defects, redundancies, and errors, is the collected reason of the ages, combining the principles of original justice with the infinite variety of human concerns, as a heap of old exploded errors, would no longer be studied. Personal self-sufficiency and arrogance (the certain attendants upon all those who have never experienced a wisdom greater than their own) would usurp the tribunal.

--Edmund Burke (1)

I tend to look at the cases from the bottom up rather than the top down ... In terms of the application of the law, you begin obviously with the precedents before you.

--Chief Justice John Roberts (2)

It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

--Alexander Hamilton (3)

If as in ordinary language, a preceding generation be called old, this old or preceding generation could not have had as much experience as the succeeding generation.... What then is the wisdom of the times called old? Is it the wisdom of gray hairs? No. It is the wisdom of the cradle.

--Jeremy Bentham (4)

1. INTRODUCTION

   Consider the following cases:

   1. For over fifty years, the words "under God" have been part of the Pledge of Allegiance. (5) Some parents object to the use of those words, arguing that under current constitutional principles, the reference to God must be counted as an establishment of religion. (6)

   2. For over seventy years, the Supreme Court has permitted Congress to create "independent" regulatory agencies--agencies whose heads are immune from the plenary removal power of the president. (7) The Department of Justice now attacks the notion of "independence," arguing that it is inconsistent with the system of checks and balances under any reasonable understanding of that system. (8)

   3. The president of the United States has long engaged in "foreign surveillance" by wiretapping conversations in which at least one of the parties is in another nation and is suspected of being unfriendly to the United States. (9) The practice of foreign surveillance has been upheld by several lower courts, which see that practice as falling within the President's "inherent" authority. (10) Those subject to such surveillance argue that as originally understood, the Constitution is not easily construed to grant such "inherent" authority to the President.

   Each of these cases presents a conflict between long-standing practices and what can be plausibly argued to be the best interpretation of the Constitution. Those who challenge the practices contend that the best interpretation must prevail. A predictable response is that when construing the Constitution, courts should be closely attentive to entrenched practices, and must give deference to the judgments of public officials extending over time. On this view, constitutional interpretation should be conservative in the literal sense--respecting settled judicial doctrine, but also deferring to traditions.

   Those who make such arguments adopt an approach to constitutional law that I shall call Burkean minimalism. (11) Burkean minimalists believe that constitutional principles must be built incrementally and by analogy, with close reference to long-standing practices. Like all minimalists, Burkeans insist on incrementalism; but they also emphasize the need for judges to pay careful heed to established traditions (12) and to avoid independent moral and political arguments of any kind. On this count, Burkean minimalists should be distinguished from their rationalist counterparts, who are less focused on long-standing practices and more willing to require an independent justification for those practices. (13) In the nation's history, Justices Felix Frankfurter and Sandra Day O'Connor have been the most prominent practitioners of Burkean minimalism, in the sense that they have tended to favor small steps and close attention to both experience and tradition. (14) As we shall see, Burkean minimalism can be used in diverse ways; some judges freely permit the democratic branches to reject traditions but are unwilling to overturn traditions on their own, whereas other judges believe that when plausibly challenged on constitutional grounds, democratic changes in long-standing practices must receive careful scrutiny from the courts. Burkeanism might therefore be used as a shield, enabling government to fend off attacks on traditions, or instead as a sword, allowing litigants to challenge departures from long-standing practices.

   Within conservative constitutional thought, Burkean minimalism is opposed by those who adopt two alternative approaches. The first is originalism. Originalists, including Justices Antonin Scalia (15) and Clarence Thomas, (16) believe that the Constitution should be understood to mean what it meant at the time that it was ratified. On this view, the ratifiers' understanding, defined as the original public meaning, provides the lodestar for constitutional interpretation. (17) Departures from that understanding are illegitimate, even if those departures are long-standing. It is noteworthy that the conservative dissenters on the Warren Court, Justices Frankfurter and John Marshall Harlan, had strong Burkean inclinations and did not typically speak in terms of the original understanding of the ratifiers. (18)

   The second alternative is conservative perfectionism. Conservative perfectionists believe that the Constitution's ideals should be cast in the most attractive light. Conservative perfectionism is responsible for the attack on affirmative action programs, (19) the effort to strike down restrictions on commercial advertising, (20) and the movement to protect property rights against "regulatory takings." (21) Conservative perfectionists are not greatly concerned with the original understanding of the founding document, and they are entirely willing to renovate long-standing practices by reference to ambitious ideas about constitutional liberty. (22) The most influential members of the Lochner Court were conservative perfectionists. (23) In the last decades, Chief Justice Rehnquist showed an occasional interest in conservative perfectionism. (24) Of course I am speaking here of ideal types, and no one is likely to be a consistent practitioner of any particular method; but the different tendencies can nonetheless be attributed to different judges.

   What unifies Burkean minimalism, originalism, and conservative perfectionism? The simplest answer is that all three disapprove of those forms of liberal thought that culminated in the work of the Warren Court and on occasion its successors. (25) All three reject the idea, prominent in the late 1970s and early 1980s, that the Supreme Court should build on footnote four in the Carolene Products decision, (26) develop constitutional law by reference to a theory of democracy, (27) and protect traditionally disadvantaged groups from majoritarian processes. (28) All three approaches are at least skeptical of Roe v. Wade, (29) the effort to remove religion from the public sphere, (30) and the at. tempt to grant new protections to suspected criminal. (31) The three approaches count as conservative simply because of their shared doubts about the rulings of the Warren Court and the arguments offered by that Court's most enthusiastic defenders. (32)

   But there are massive disagreements as well. For example, Burkean minimalists have little interest in originalism. From the Burkean perspective, originalism is far too radical, because it calls for dramatic movements in the law, and it is unacceptable for exactly that reason. (33) Originalists are in the grip of a priori reasoning. Burkean minimalists prize stability, and they are entirely willing to accept rulings that do...