A Constitution of Many Minds: Why the Founding Document Doesn't Mean What It Meant Before.

• Author: Garry, Patrick M.
• Position: Book review

Perhaps the most obvious lesson of Cass Sunstein's newest book is that constitutional interpretation is a much more complex matter than is often thought. Typically, we place the different approaches to constitutional interpretation into neatly separate and self-contained categories, such as originalists and those who believe in a living constitution. But as Cass Sunstein demonstrates in A Constitution of Many Minds, constitutional interpretation is anything but a neatly-defined endeavor. (2)

Sunstein presents and analyzes three different approaches to constitutional interpretation: traditionalism, populism, and cosmopolitanism. Not only do these three models reflect somewhat newly articulated theories of constitutional interpretation, but Sunstein also takes a new approach in analyzing each of these models. According to Sunstein, each of the three models rest in their own way on a "many minds" argument, which asserts that if many people have settled on a common practice or proposition, the courts should pay careful attention to that practice or proposition. A form of this "many minds" argument underlies each model, even though each model differs significantly from the other. Sunstein then analyzes each of the differing models of constitutional interpretation by scrutinizing the particular form of the "many minds" argument that underlies each of the different models.

Sunstein's use of the "many minds" argument obviously indicates that he sees constitutional interpretation as a function that extends well beyond the Supreme Court. To Sunstein, constitutional interpretation involves the "many minds" of democratic society as a whole. As he explains, "self-government, far more than judicial innovation, has been responsible" for changes in constitutional arrangements and understandings. (3) one such example involves the constitutional changes produced by the New Deal--changes that were effectively implemented through the political process and then only ratified by the Supreme Court. According to Sunstein, it was democratic society, not the nine justices on the Supreme Court, that initiated and implemented the constitutional revolution brought on by the New Deal. (4) As the subtitle to Sunstein's book indicates, the Constitution does not mean what it meant before because its meaning is not fixed; instead, "every generation produces a degree of constitutional reform, and it does so because of its new understandings of facts or its new judgments of value." (5)

Even though the three constitutional models identified by Sunstein--traditionalism, populism, and cosmopolitanism--encompass very different assumptions and views of the Constitution, Sunstein nonetheless identifies a similar strain within each of these models. This strain relates to the "many minds" argument. (6) In identifying the presence and influence of this argument within each model, Sunstein borrows heavily from the Jury Theorem, which says that the probability of a group reaching a correct answer increases toward 100% as the group gets bigger. (7) According to this theorem, groups will do better than individuals, and large groups better than small ones, so long as two conditions are met: first, that majority rule is used; and second, that each person is more likely than not to be correct. Sunstein shows how the Jury Theorem bears on constitutional law and how it can be used to analyze the...