The Partial Constitution.

• Author: Maggs, Gregory E.

By Cass R. Sunstein.(*) Cambridge: Harvard University Press, 1993. Pp. vi, 414. $35.00.

The Supreme Court has wrapped itself in a great deal of controversy during the latter half of this century by forcing change on people who have not wanted it. Its decisions have altered police practices, eliminated prayer from public institutions, curtailed the death penalty, ordered busing of children to new schools, and struck down longstanding laws on a variety of subjects ranging from flag burning, to loitering, to abortion. This history would suggest to many observers that the Court has no particular fondness for the status quo and, indeed, that the Court is quite willing to use its docket to rework society.

Professor Cass Sunstein does not share this view. In his new book, The Partial Constitution,(1) Sunstein faults the Court not for imposing change on an unreceptive nation, but instead for making the status quo a "baseline" for judging the constitutionality of action or inaction by the government.(2) In Sunstein's view, the Supreme Court tends to uphold laws that leave existing distributions of wealth and opportunity alone, while treating laws that alter them as constitutionally suspect.(3)

Sunstein believes that the Court favors the status quo because it thinks that the status quo is neutral. According to Sunstein, however, this view is wrong. In The Partial Constitution, Sunstein strives to explain that the status quo usually is not neutral because it is rarely determined solely by natural forces. Sunstein asserts that a myriad of background laws, such as the common law of property and contracts, have helped to shape the distribution of resources in America over the centuries.(4) As a result, the status quo may lack fairness and legitimacy if the background laws that have shaped it lack legitimacy.(5)

What troubles Sunstein most is the possibility that, by interpreting the Constitution to prefer the status quo over change, the Court's opinions favor those who currently enjoy benefits under the law, and disfavor those who do not. Favoring existing distributions, in other words, may make the Constitution "partial" to some and not to others. Sunstein asserts that the Court should cease preferring the status quo over change when it interprets the Constitution. He maintains that, properly interpreted, the Constitution generally empowers the government to alter legal interests so long as it acts in a manner consistent with what he calls "deliberative democracy."(6)

Sunstein clearly has thought long about his arguments,(7) and he presents them in a logically organized and impressively detailed manner. Yet, the claim that the Supreme Court has taken an excessively conservative approach to change does not accord with a casual observation of the Court's cases, which appear to be constantly reshaping various facets of American life. The Partial Constitution's thesis suggests, moreover, that the Constitution mandates even greater departures from the status quo than those which the Court already has ordered. Sunstein contends that Congress has a constitutional duty to undertake various redistributive projects, such as funding abortion in certain cases.(8) He also argues that current anti-obscenity laws may violate the First Amendment, except to the extent that they prohibit depiction of violence against women.(9)

Although Sunstein says much that is convincing, the central argument in The Partial Constitution has several problems. Sunstein does not prove that it is possible to generalize about whether the Constitution requires, permits, or forbids using the status quo as a baseline for decisionmaking. He does not show and probably cannot show that the Constitution embraces deliberative democracy or any other abstract principles in a consistent manner. Finally, he does not demonstrate that the Court actually has given the status quo the sanctity that Sunstein alleges.

These problems, though significant, do not undermine the aim of his book, which is to relax inhibitions against political actions altering the status quo. Ironically, Sunstein's project is more likely to be undermined by his argument backfiring than by any holes in that argument. In other words, insistence that governmental action accord with Sunstein's vision of deliberative democracy might inhibit more change than it would foster.

1. SUMMARY

   Although any short summary of The Partial Constitution has to leave out a great deal of detail,(10) Sunstein's argument does not defy a brief outline. The Partial Constitution is split into two parts. The first examines a variety of questions that arise when the government attempts to change the status quo. The second applies the ideas developed in the first part to a host of currently controversial constitutional issues.

   1. Status Quo Neutrality and Constitutional Interpretation

      In discussing the government's obligations with respect to the status quo, Sunstein addresses three topics: (1) the "impartiality principle" in constitutional law, (2) the "status quo neutrality" conception of impartiality, and (3) the proper manner of interpreting the Constitution. Although these ideas may sound rather abstract, Sunstein lays them out in straightforward terms.

      1. The Impartiality Principle

         Sunstein claims that the Constitution generally requires the government to treat citizens impartially, meaning that it may not distribute "resources to one person or group rather than to another on the sole ground that those benefited [by the distribution] have exercised political power in order to obtain government assistance."(11) In other words, no group--men, women, Christians, or others--should have special benefits merely because its members have managed to elect sympathetic representatives into office.

         Where does this "impartiality principle" come from? Sunstein finds support for it in the history and text of the Constitution. He reports that a common idea "echoed" throughout the founding period that the United States should be a "republic of reasons" and a "deliberative democracy,"(12) rather than a nation governed by "the self-interest of private groups."(13) The framers, Sunstein asserts, wanter participants in government to persuade their opponents through logical reasoning, rather than merely to outvote them. He note, for example, that James Madison said that he wanted to create a government that would consist of men "whose wisdom [will] discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations."(14) Sunstein has found similar quotations from Thomas Jefferson,(15) Roger Sherman,(16) and Alexander Hamilton.(17)

         The Constitution, according to Sunstein, embodies the impartiality principle, in greater and lesser degrees, in a variety of places. For example, the Privileges and immunities Clause of Article IV and the so-called dormant Commerce Clause prohibit protectionism or, as Sunstein puts it, "measures that citizens of one state enact in order to benefit themselves at the expense of out-of-staters."(18) .. sees the Equal Protection and Due Process Clauses as general expressions of the same idea, in that they forbid the government from benefiting or discriminating against any group without providing justifications.(19) The Eminent Domain Clause, he observes, likewise allows the government to take property only for public use, and not for the private use of others.(20) The Contract Clause, Sunstein notes, affords further protection against government partiality by preventing those in power from undoing agreements if they later become disadvantageous to one side.(21)

      2. Status Quo Neutrality--A Misconception of Impartiality

         Sunstein argues that although the Court has recognized the requirement of impartiality, it often misconceives the meaning of impartiality. According to Sunstein, the Court has taken the position that the government acts neutrally or impartially when it does not interfere with existing distributions of rights and opportunities. Sunstein labels this conception of impartiality, which he considers misguided, "status quo neutrality."(22)

         Sunstein does not believe that status quo neutrality necessarily satisfies the impartiality requirement. Distributions of resources rarely stem from wholly natural forces; instead, some background law--such as the common law--usually determines who has what in our society. In Sunstein's words, "[r]espect for existing distributions is neutral only if existing distributions are themselves neutral."(23) He asserts that, when the status quo favors one group over another, and thus lacks impartiality, a court should not use the status quo as a baseline for assessing whether governmental action or inaction has violated the impartiality principle.

         Sunstein illustrates this idea with a host of Supreme Court decisions. One of his examples is Lochner v. New York, in which the Court struck down a state law limiting the number of hours bakers could work each week.(24) Reading between the lines of the opinion, Sunstein interprets the case to say that the law violated the impartiality principle because it "transfer[red] resources from employers to employees" and thus favored one group over another.(25) He faults this reasoning because it takes "existing distributions as the starting point for analysis."(26) Sunstein feels that the Court should have recognized that there were background rules--in particular, the common law--under which the bakers and their employers operated before the legislature enacted the maximum-hour legislation, and thus realized that the status quo was not necessarily neutral.(27) Sunstein laments that other cases from the same period also equated status quo neutrality with impartiality.(28)

         A more recent example is Rust v. Sullivan,(29) in which Sunstein says the Court "upheld a regulation forbidding clinics [receiving certain federal funds] from giving advice about...