The Partial Constitution.

• Author: Bennett, Robert W.

The Partial Constitution is Cass Sunstein's attempt to pull together the elements of a civic republican vision for American constitutionalism in the late twentieth century. Civic republicanism refers to a set of beliefs about government and its citizens, traceable to ancient Rome, and associated especially with the anti-federalist position in the debates surrounding ratification of the United States Constitution. In its revolutionary American form, this republicanism:

meant...more than eliminating a king and instituting an elec-

tive system of government; it meant setting forth moral and

social goals as well. Republics required a particular sort of

independent, egalitarian, and virtuous people...who scorned

luxury and superfluous private expenditure, who possessed

sufficient property to be free from patronage and dependency

on others, and who were willing to sacrifice many of their self-

ish interests for the res publica, the good of the whole

community.(3)

In Sunstein's contemporary rendition, two notions move to center stage. The first is "the general commitment to deliberative democracy," which Sunstein says is at the heart of his approach to constitutional interpretation. The second is "status quo neutrality." Sunstein explains that neutrality is essential for the rule of law, and hence for constitutional law, but that it is impermissible to adopt the status quo as the baseline for judging neutrality, so that deviations from it are taken to be non-neutral, and hence suspect or infirm. Instead in a deliberative democracy, baselines for judgment must be forged by reason, with no favored position whatsoever for the status quo.

The book has a number of interesting and provocative discussions. It contains, for instance, a nice argument that law is a pervasive influence in the formation of individual preferences, so that we cannot simply assume that there is some prelegal set of preferences that makes up the raw material with which the law is to cope. (166-70) And it collects some interesting material as part of its argument that people display a different preference set when they are acting as decisionmakers in the public realm than in the private. (179) Many of the most interesting parts of the book are about baselines--for judging when the state has acted, when speech has been regulated, when some activity has been penalized and when it has been rewarded.

Unfortunately, the book lacks definition and coherence. Sunstein uses key terms with little precision; in particular, he never pins down what it takes to be a legitimating "reason." And neither of the book's central organizing themes--status quo neutrality and deliberative democracy--seems in the end to tie much together. Sunstein uses status quo neutrality to mean a lot of different things, and his commitment to his stated disapproval of a status quo standard of neutrality is belied by many of his specific discussions. His discussion of deliberative democracy leaves many unanswered questions about how that deliberative democracy would serve its supposed ends. Both the concepts seem to be mostly rhetorical devices deployed to unify a series of disparate positions on constitutional matters. Sunstein has earlier exhibited a passion for systematizing constitutional law beyond the comfort level,(4) and The Partial Constitution is in that pattern.

In Parts I and II of this essay I describe and discuss Sunstein's notions of status quo neutrality and deliberative democracy. In Part III I sketch an alternative constitutional agenda for the contemporary United States, one that might be called "neoMadisonian." Sunstein labors hard to enlist the Madison of the Federalist papers in the cause of civic republicanism, but the attempt falls flat. In Part III I suggest that a commonly discussed series of reforms that Sunstein entirely ignores, while surely bringing their own costs, would be a good deal more in the spirit of Madison's approach than are those to be found in The Partial Constitution.

I

Sunstein defines "status quo neutrality" as "taking...as the baseline for decision...what various people and groups now have: existing distributions of property, income, legal entitlements, wealth, so-called natural assets, and preferences." (3) Under this conception of neutrality "[a] departure from the status quo signals partisanship; respect for the status quo signals neutrality." (3) To Sunstein this is unacceptable. Rather the law must be fashioned by bringing reason to bear on all questions of entitlement. And the reason must be "public-regarding.... Government cannot appeal to private interest alone." (17)

The role that Sunstein assigns to "reason" is seemingly unrelenting. "[G]overnment must always have a reason for what it does." (17) Even "[t]he status quo...may be accepted only on the basis of the reasons that can be brought forward on its behalf." (135) These reasons must "independently" justify the status quo. (6) This means, of course, that government must have reasons, and be prepared to advance them, not only for action it takes, but for leaving things as they are.

Sunstein finds traces of this refusal to defer to the status quo in the intellectual climate of our constitutional founding, but he thinks it became embedded in our constitutional tradition in the New Deal. "[T]he outstanding conceptual break" of the New Deal, he tells us, was the appreciation "that ownership rights and the status quo were products of government," (57) that common law "ownership rights, and everything that accompanied them, had been created by the legal system" (51) and could be undone by it.

Sunstein is clear, however, that this New Deal project has been realized only partially. He analyzes myriad contemporary constitutional problems in terms of the failure to resist the allure of the status quo baseline. Thus, on the guarantee of free speech, he says that we cannot simply accept the existing regime of property rights in media as non-regulation and hence constitutionally unobjectionable. "In a regime of property rights, there is no such thing as no regulation of speech...." (206) Instead "protection of property rights [in media]...must always be assessed pragmatically in terms of its effects on speech." (206) In the same vein, he lets his imagination run free in discussing a constitutional taking: "a state might be thought to 'take private property' if it...uses law to disable the unpropertied from obtaining things."(5) (128)

In many of his most telling discussions, Sunstein uses the concept of the status quo to refer, as in these examples, to entitlements associated with holdings of property at common law. The definition quoted earlier, however, is a good deal broader ("existing distributions of...preferences [among 'various people and groups']"), and Sunstein does make use of the leeway provided by the broad definition. Thus he criticizes the majority opinion in R.A.V. v. St. Paul(6) as grounded in status quo neutrality for failure to appreciate that racial hate speech is distinctly stigmatizing, that it produces a hurt that is not simply like any other. (251) And he argues for a reconceptualization of many issues specially affecting women in our society by urging a willingness to look beyond "the sexual and reproductive status quo" that is "sometimes...a locus of inequality." (260) This includes urging that the First Amendment be conceptualized in a way that would allow at least some regulation of pornography because of the harm that it does to women. His discussion of this last point illustrates how easily he manipulates the concept of "status quo neutrality."

Sunstein contrasts the prevailing approach to regulation of pornography with that for obscenity:

Obscenity law, insofar as it is tied to community standards, is

...deemed neutral.... Antipornography legislation is

deemed impermissibly partisan because the prohibited class of

speech is defined by less widely accepted ideas about equality

between men and women--more precisely, by reference to a

belief that equality does not always exist even in the private

realm, that sexual violence by men against women is a greater

problem than sexual violence by women against men, and that

the sexual status quo is an ingredient in gender inequality.

(269)

Embedded here are factual assertions that three beliefs are held at least more widely than the contrary beliefs: a) that equality between the sexes always exists in the private realm; b) that sexual violence by women against men is at least as much a problem as sexual violence by men against women; and c) that the sexual status quo is not an ingredient in gender inequality. Now I doubt that many people believe any of these three things, especially a) and b).(7) I should be amazed if more than a handful of adults in the country believe b). More to the point, if these beliefs are taken to be part of some "status quo" that is illegitimately being used to define "neutrality," it seems a trivial use of the status quo concept, far removed from common law property entitlement. If all Sunstein means by "status quo neutrality" is a position or belief held by some people (more "widely accepted") with whom he is in the process of disagreeing, then it hardly carries the encompassing and portentous significance that he ascribes to it when he speaks of the "conceptual break" of the New Deal.

If instead we confine the notion of "status quo neutrality" to the concern with common law property, we find that Sunstein's bark is more fearsome than his bite. As we have seen, he speculates that the prohibition of theft might be unconstitutional, but he is really quite mild in the positions he actively advocates. Being untethered by common law property entitlement undoubtedly leaves him feeling more comfortable in advocating such things as rights of access to mass media (221-23) and to privately owned shopping centers (208) for those wanting to have their say. But both those positions have...