By Cass R. Sunstein. Cambridge: Harvard University Press. 1993. Pp. vi, 414. Cloth, $35.
Cass Sunstein's book, The Partial Constitution,(1) brings together a number of his constitutional law essays from the last ten years. During that time, Sunstein has argued, powerfully, for the unconstitutionality of regulatory constraints on access to abortion;(2) for the constitutionality of and the need for regulation of violent pornography;(3) for the constitutionality of limits on both campaign spending and congressional control over public broadcasting;(4) for the deep consistency, conventional wisdom to the contrary notwithstanding, of the Court's repudiation of Lochner in 1937 with its 1974 decision in Roe v. Wade,(5) for the view that we should accord far less deference than we do to presently held preferences and presently conceived "interests" in our public or collective decisionmaking;(6) and for the view that at the heart of our constitutional traditions lies a commitment to deliberative democracy which, if sufficiently attended, could generate many more specific constitutional entailments, including but not limited to those put forth above.(7) This book represents, and by so doing strengthens, these arguments and a good number of others as well. Sunstein's now-familiar arguments on all of these topics are detailed, nuanced, often unconventional, and sometimes courageous. They are also -- and for the most part to their credit -- of an entirely conventional form, put forward in lawyerly cadences and straightforward propositions, beginning with general -- but he thinks widely accepted -- premises about the nature of our political life and proceeding through readings of the constitutional text and history toward specific conclusions about present constitutional conundrums. This book is well worth reading and rereading if for no other reason than to get a sense of the power of traditional legal arguments when put to often quite nontraditional political ends.
Others have already produced a tremendous amount of secondary commentary on virtually all of these Sunsteinian arguments, and I am not going to catalogue or add to it here, in part for the familiar reason that I agree with many of his positions and I see no reason simply to add my assent. I want to comment instead on what I see as the additional task Sunstein has set out for himself in this book -- a task which may be of greater significance than the correctness of any of the particular constitutional arguments the book elaborates. What Sunstein has tried to do in this book is to weave his arguments on particular issues into a coherent whole, largely by identifying and then developing the common philosophical premises of the various positions he has taken over the last ten years. He then argues that the conception of the Constitution that emerges from a careful elaboration of those premises is both truer to our history and more just than the competing visions of the Constitution that both constitutional theorists and the Court have developed in the modem, post-New Deal era.
Importantly, though, Sunstein does not simply present "his" interpretation of the Constitution as one possible interpretation among any number. Rather, his starting premises, he clearly believes, are correct and widely held to be so. If that assumption is right, and if we share with him a commitment to rational forms of argument, then the Constitution he envisions is not just "his" interpretation; instead, it is in an important sense "our" Constitution. It follows that the conclusions he reaches on substantive constitutional positions, including some he calls "surprising," should command general assent. I think this larger, overarching project is not in the end successful, but I also think it is a tremendously worthy endeavor. It is a project full of promise and hope: the Constitution here envisioned is a just Constitution which could indeed service the ends of justice in contemporary life. Consequently, when the project fails, the failures are tremendously disappointing, and the reasons for those failures important.
In this review, I will first describe the deep structure of Sunstein's Constitution by outlining what I take to be the major premises elaborated in his book and then criticizing sequentially each of the premises I take to be the basic building blocks of Sunstein's "partial Constitution." All of Sunstein's basic premises, I think, are more problematic than Sunstein believes them to be. By identifying the problems I hope to suggest that the flaws, although deep, are curable, and that whether or not that is the case, the constitutional goals Sunstein puts forward in this book are goals we should applaud.
THE SUNSTEINIAN CONSTITUTION
At least five philosophical premises -- four substantive and one methodological -- unify the various arguments that compose the core of this book. The first substantive premise regards the nature of the state, hence the nature and scope of state action, and ultimately, therefore, the reach of the Constitution. Sunstein takes it as given that the Constitution addresses only state, not private, action. It therefore becomes imperative to know what does or does not constitute state action and what sorts of phenomena are accordingly within the reach of constitutional restraints. To answer that question, we need to know what is meant by the common notion of the state. As we all readily recognize, the state consists in part of legislatures and administrative agencies, and state action accordingly consists unproblematically of at least the decisions of those bodies. Central to virtually all of Sunstein's constitutional arguments, however, is the more contentious point that the state also consists of the seamless web of rules, standards, distinctions, and judgments that collectively constitute the common law (pp. 51-57, 74-75, 124, 159).
Echoing Holmes and the realists, Sunstein repeatedly points out that this definition is simply a matter of brute "fact," and even of obvious brute fact (pp. 51, 40-67), but he finds it nevertheless to be a fact of tremendous consequence, and a fact often ignored. Once we recognize that the state consists of the common law of property, contract, and tort, as well as the enactments of legislatures, the much treasured distinctions -- treasured, that is, by some conventional liberals, many conservatives, and all libertarians -- between public and private law (p. 159), between action and inaction (pp. 71-75), between partisan and neutral (pp. 75-80), between state and individual (pp. 90-91), and between positive and negative rights (pp. 69-71) virtually disappear. Private markets, to take an important example, do not exemplify, constitute, or participate in a private sphere of life unpolluted by state intervention: rather, the existence of a market is itself entirely a creation of the state, and more particularly a creation of the state common law of tort, contract, and property. Without contract and property law -- and hence without the state -- markets would not exist (p. 50). For similar sorts of reasons, when a legislature fails to act -- fails to protect a citizen against violence, discrimination, or pollution -- we cannot sensibly describe that as mere "inaction" in the face of a prelegal status quo and hence outside the reach of constitutional norms. Rather, the status quo the legislature failed to change is itself a product of legally created -- hence state-created -- rights and obligations (pp. 71-75).
That the purportedly private market and the purportedly prelegal status quo, appearances to the contrary notwithstanding, are actually products of state action is a brute fact that, if fully understood, renders utterly fallacious a good bit of contemporary as well as pre-New Deal constitutional law, in addition to a great deal of contemporary libertarian rhetoric about the virtues of private markets as contrasted with the silliness, corruption, ineptitude, or incompetence of state intervenors. The state, Sunstein reminds us forcefully, is always already present in these supposedly private markets, no less than the state was present in the racially segregated private culture of the Plessy-era South (pp. 42-45). In fact, there is no meaningful realm of purely private life, if by private life we mean life untouched by state action, so we ought to quit thinking in terms of false dichotomies that assume the existence of unicorns. There is no private world of private action that exists apart from the mechanisms of the state, Sunstein strongly suggests (pp. 159-61). There is private action, to be sure, and such private action is indeed not the target of the Constitution (pp. 159-61). But that private action is invariably and inevitably facilitated by, structured by, permitted by, made possible by -- no less than constrained by -- the actions of states. Those actions, Sunstein insists, should without question be regarded, although they often are not, as the proper target of the Constitution (pp. 159-61).
Second, Sunstein argues, a great deal of contemporary constitutional law and contemporary constitutional argument rests on the flawed assumption that the requirement of "government neutrality" properly found in the Constitution mandates that the government take a deferential attitude toward the status quo, whenever that status quo is a product of either nature, market choices, or prelegal social structures (pp. v-vi, 1- 14, 68-92). In other words, it is widely believed that the Constitution requires governmental neutrality, and what that neutrality requires in turn is that the government not "take sides" in social, natural, or market struggles. Sunstein endorses the premise but vigorously protests the inference. It is entirely correct, Sunstein insists -- indeed, it is one of the ma or themes of his book -- that government should live up to an ideal of neutrality, if by neutrality we mean that legislation must be...