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How to Interpret the Constitution
From New York Times bestselling author Cass Sunstein, a timely and powerful argument for rethinking how the U.S. Constitution is interpreted
The U.S. Supreme Court has eliminated the right to abortion and is revisiting other fundamental questions today—about voting rights, affirmative action, gun laws, and much more. Once-arcane theories of constitutional interpretation are profoundly affecting the lives of all Americans. In this brief and urgent book, Harvard Law School professor Cass Sunstein provides a lively introduction to competing approaches to interpreting the Constitution—and argues that the only way to choose one is to ask whether it would change American life for the better or worse. If a method of interpretation would eliminate the right of privacy, allow racial segregation, or obliterate free speech, it would be unacceptable for that reason.
But some Supreme Court justices are committed to “originalism,” arguing that the meaning of the Constitution is settled by how it was publicly understood when it was ratified. Originalists insist that their approach is dictated by the Constitution. That, Sunstein argues, is a big mistake. The Constitution doesn’t contain instructions for its own interpretation. Any approach to constitutional interpretation needs to be defended in terms of its broad effects—what it does to our rights and our institutions. It must respect those rights and institutions—and safeguard the conditions for democracy itself.
Passionate and compelling, How to Interpret the Constitution is essential reading for anyone who is concerned about how the Supreme Court is changing the rights and lives of Americans today.
The U.S. Supreme Court has eliminated the right to abortion and is revisiting other fundamental questions today—about voting rights, affirmative action, gun laws, and much more. Once-arcane theories of constitutional interpretation are profoundly affecting the lives of all Americans. In this brief and urgent book, Harvard Law School professor Cass Sunstein provides a lively introduction to competing approaches to interpreting the Constitution—and argues that the only way to choose one is to ask whether it would change American life for the better or worse. If a method of interpretation would eliminate the right of privacy, allow racial segregation, or obliterate free speech, it would be unacceptable for that reason.
But some Supreme Court justices are committed to “originalism,” arguing that the meaning of the Constitution is settled by how it was publicly understood when it was ratified. Originalists insist that their approach is dictated by the Constitution. That, Sunstein argues, is a big mistake. The Constitution doesn’t contain instructions for its own interpretation. Any approach to constitutional interpretation needs to be defended in terms of its broad effects—what it does to our rights and our institutions. It must respect those rights and institutions—and safeguard the conditions for democracy itself.
Passionate and compelling, How to Interpret the Constitution is essential reading for anyone who is concerned about how the Supreme Court is changing the rights and lives of Americans today.
198 pages, Kindle Edition
Published August 15, 2023
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218 people want to read
About the author
Cass R. Sunstein
168 books730 followersCass R. Sunstein is an American legal scholar, particularly in the fields of constitutional law, administrative law, environmental law, and law and behavioral economics, who currently is the Administrator of the White House Office of Information and Regulatory Affairs in the Obama administration. For 27 years, Sunstein taught at the University of Chicago Law School, where he continues to teach as the Harry Kalven Visiting Professor. Sunstein is currently Professor of Law at Harvard Law School, where he is on leave while working in the Obama administration.
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October 2, 2023
Notwithstanding its title, this book does not explain how to interpret the Constitution. Sunstein explains up front that he intends to dispute originalism. He starts with first principles, building a meta-theory for how we should select a theory of constitutional interpretation.
Any defense of constitutional interpretation must rely, Sunstein says, on the interpreter’s “fixed points” as filtered through Rawlsian reflective equilibrium. Fixed points are those elements of a constitutional republic that we would be very reluctant to, if ever, sacrifice. Each of us chooses a theory of interpretation that best protects our fixed points. Reflective equilibrium aims “to ensure that our moral and political judgments line up with one another, do not contradict each other, and support one another.”
Sunstein insists that this framework has teeth. I have doubts. Fixed points in a reflective equilibrium compose an epistemological framework for, not only constitutional interpretation, but all beliefs a rational person holds. All rational opinions are more fixed or less fixed depending on the degree they are tethered to one another in a web of beliefs.
Where does this constitutional epistemology get us? Sunstein refers often to the importance of granular fixed points in the form of particular social policies he prefers – broad rights to abortion, legislative authority over campaign finance spending, and so on. He invites us to compare decisions that flow from an interpretive theory to the kind of country we want to live in. Isn’t that what protestors in front of the Supreme Court are doing?
What he could do, but doesn’t, is evaluate general (as opposed to policy-level) implications of a given theory relative to those of another. He mentions levels of generality, and he toys with ideas like the value of rule of law. But he makes no effort to connect or balance the general and the granular.
How are we to evaluate a person’s reflective equilibrium? Is each individual’s equilibrium as valid as the next person’s? Why should we accept his emphasis on policy fixed points and downplay higher order fixed points like rule of law? Can we even tell what kind of constitutional order flows from a given theory of interpretation? In short, is Sunstein saying anything that will guide a reader to one theory of constitutional interpretation rather than another?
Any defense of constitutional interpretation must rely, Sunstein says, on the interpreter’s “fixed points” as filtered through Rawlsian reflective equilibrium. Fixed points are those elements of a constitutional republic that we would be very reluctant to, if ever, sacrifice. Each of us chooses a theory of interpretation that best protects our fixed points. Reflective equilibrium aims “to ensure that our moral and political judgments line up with one another, do not contradict each other, and support one another.”
Sunstein insists that this framework has teeth. I have doubts. Fixed points in a reflective equilibrium compose an epistemological framework for, not only constitutional interpretation, but all beliefs a rational person holds. All rational opinions are more fixed or less fixed depending on the degree they are tethered to one another in a web of beliefs.
Where does this constitutional epistemology get us? Sunstein refers often to the importance of granular fixed points in the form of particular social policies he prefers – broad rights to abortion, legislative authority over campaign finance spending, and so on. He invites us to compare decisions that flow from an interpretive theory to the kind of country we want to live in. Isn’t that what protestors in front of the Supreme Court are doing?
What he could do, but doesn’t, is evaluate general (as opposed to policy-level) implications of a given theory relative to those of another. He mentions levels of generality, and he toys with ideas like the value of rule of law. But he makes no effort to connect or balance the general and the granular.
How are we to evaluate a person’s reflective equilibrium? Is each individual’s equilibrium as valid as the next person’s? Why should we accept his emphasis on policy fixed points and downplay higher order fixed points like rule of law? Can we even tell what kind of constitutional order flows from a given theory of interpretation? In short, is Sunstein saying anything that will guide a reader to one theory of constitutional interpretation rather than another?
August 18, 2023
There are two undeniable facts about the US Constitution: (1) it does not contain the instructions for its own interpretation, and (2) it is written in an ambiguous way that nevertheless demands some interpretation. It is impossible, therefore, to engage in a “value-neutral” reading of the text; however you decide to interpret the Constitution inevitably changes its meaning, however slightly. And the consequences of this must be defended on some ground.
In How to Interpret the Constitution, Cass Sunstein seeks to explain the various interpretive frameworks that exist and to propose a simple criterion for preferring one over the other; namely, that “judges (and others) should choose the theory that would make the American constitutional order better rather than worse.”
Here’s an example to get us started. As Sunstein wrote:
In 1930 it would have been pretty radical, and maybe even preposterous, to say that the Constitution forbids racially segregated schools. As of this writing, it would be radical, and quite preposterous, to say that the Constitution does not forbid racially segregated schools.
The Constitution, in other words—prior to Brown v. Board of Education—had no “originalist” meaning that made segregation unconstitutional. So, if you adopt an “originalist” position, then congratulations: you can now proudly support the idea that segregation should be perfectly constitutional. You may have a difficult time defending this idea to others, but hey, it’s better to be consistent, right?
The point is that, as Sunstein wrote, “the effects of changes in men’s feelings for what is right and just is equally relevant” in determining how to interpret the Constitution. And if we want to simplify things, and break things down according to a single criterion, then that criterion should be “making the constitutional order better rather than worse” in terms of the effects decisions have on actual people’s lives according to evolving moral standards. And if a theory tells us that segregation is constitutionally acceptable, then that theory should be promptly discarded—original public meaning be damned.
Using this logic, the Supreme Court got it right in its decision requiring states to recognize same-sex marriage. Consider this passage from the decision:
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
Unfortunately, this is not the only way to think about Constitutional law. Sunstein presents the various interpretive theories—including the various forms of originalism, moral readings, democracy-reinforcing readings, common-law constitutionalism, and common-good constitutionalism—and notes, correctly, that, since the Constitution mentions no theoretical preference, it is largely at the discretion of lawyers and judges to interpret the broad and often vague language of the Constitution in whatever manner they like.
But here’s one thing you cannot do: pretend that adopting an “originalist” stance absolves you from the moral responsibility of defending your decisions, as if they were inevitable, and then deny the fact that all interpretations are unavoidably value-laden. It would be better if we all dropped the charade and said what we’re really after when we “interpret” a constitutional provision one way or another.
The danger here clearly seems to be with originalism, as its proponents fail to offer any moral justifications for their decisions, which, in a deliberative democracy, is anathema. Therefore, we might expect a more passionate and thorough critique of this misguided theory. Instead, Sunstein offers a more round-about critique under the questionable guise of objectivity, and the reader is left to piece things together themselves, at least for the first half of the book. (For a more forceful and substantive critique of originalism, read Erwin Chemerinsky’s masterpiece Worse Than Nothing: The Dangerous Fallacy of Originalism).
And so, you’re three chapters in and halfway through the book before Sunstein tells you what he really thinks; namely, that the best theory of interpretation is a form of Rawlsian reflective equilibrium that forces you to abandon theories that produce morally reprehensible results (big surprise, this means originalism). It’s not that I think Sunstein is wrong (in fact, I think he’s right), it’s just that it takes him a lot of words to get there (straining the reader’s patience along the way).
But it makes a lot of sense; if a theory of interpretation results in blatant discrimination, for example, you’d think it would be rather obvious that the theory should be discarded. It’s actually a shame that it takes a book-length explanation to make the case as to why this is preferable (but unfortunately, it probably does).
The originalist, of course, can still counter that they are perfectly fine with the fact that originalism sometimes produces morally reprehensible results (like the implicit support of segregation) because it is not the job of the courts to monitor the country’s collective moral standing; that’s the job, say the originalists, of Congress, and of a democracy’s elected representatives.
But this seems to be a rather weak and evasive response. If the Constitution does not impose any interpretive theory on us (it doesn’t), and we are then free to select our own theory, then why in the world would we want to choose a theory that produces obviously immoral results, that we can all more-or-less agree on, in specific cases? This is Sunstein’s primary argument, and it's hard to argue against.
In fact, the whole “it’s not my job or problem” attitude among conservative politicians and judges grows tiresome; imagine going to a job interview and saying, “this job doesn’t seem all that valuable, and I’ll look the other way if terrible things happen on my watch.” Well, you probably wouldn’t get hired, and yet we continue to elect politicians that openly express their hatred for the government and then appoint judges that openly express their contempt for any form of judicial oversight (even as they engage in judicial activism by, for example, granting corporations “free speech” rights).
This is, frankly, madness. And Sunstein does a decent job, in his own meandering way, of exposing it. But again, I think Chemerinsky’s book does a far better job.
Here’s a final consideration: Sunstein doesn't mention this, but to my mind, the entire originalism/nonoriginalism debate obscures the real issue, and conceals the real fault line we should be focused on.
Because the Constitution is written ambiguously, we can always interpret it either broadly or narrowly. For example, the First Amendment grants us rights to free speech, which we could interpret as protecting pretty much all speech, including hate speech, libel, and false advertising (broad application), or, alternatively, as protecting free speech except in carefully defined circumstances, like the inciting of violence (a more narrow application). The relevant concern here is not “original intent” or even “democracy-reinforcement” but rather the granting of the appropriate scope of rights—by expanding or contracting them—that is consistent with evolving moral standards of justice. (And since the founders wrote the Constitution in what appears to be an intentionally vague way, it seems like this is more likely what they envisioned.)
Thought of in this way, our theory passes the gold standard test of Brown v. Board of Education. We can say that Brown was ruled correctly because the “equal protection clause” of the Fourteenth Amendment was correctly expanded, or more broadly applied. Whereas originalism, by contrast, tells us Brown was decided incorrectly, and that segregation should be constitutional, our idea that the equal protection clause should be applied more broadly than the founders conceived not only correctly decides Brown, but can also be used to correctly decide future cases of discrimination. And if it’s ever taken too far, we can then talk about narrowing its scope—without ever having to speculate about the intentions of individuals who have been dead for hundreds of years. Is this not preferable?
In other words, when we interpret the Constitution, or decide a case, we must decide how broad or narrow our interpretation or decision is, who is impacted, and whether or not the results seem generally fair. Originalists (and all justices) are basically doing this anyway, but by focusing on the broad/narrow divide, and the inevitable trade-offs involved, at least they’ll be doing it transparently, without hiding behind the fallacy of “originalism.” Currently, the Supreme Court is slowly eroding our rights, which they don’t even have to justify other than by referencing some nebulous idea of “original public meaning,” which should entirely piss you off.
In How to Interpret the Constitution, Cass Sunstein seeks to explain the various interpretive frameworks that exist and to propose a simple criterion for preferring one over the other; namely, that “judges (and others) should choose the theory that would make the American constitutional order better rather than worse.”
Here’s an example to get us started. As Sunstein wrote:
In 1930 it would have been pretty radical, and maybe even preposterous, to say that the Constitution forbids racially segregated schools. As of this writing, it would be radical, and quite preposterous, to say that the Constitution does not forbid racially segregated schools.
The Constitution, in other words—prior to Brown v. Board of Education—had no “originalist” meaning that made segregation unconstitutional. So, if you adopt an “originalist” position, then congratulations: you can now proudly support the idea that segregation should be perfectly constitutional. You may have a difficult time defending this idea to others, but hey, it’s better to be consistent, right?
The point is that, as Sunstein wrote, “the effects of changes in men’s feelings for what is right and just is equally relevant” in determining how to interpret the Constitution. And if we want to simplify things, and break things down according to a single criterion, then that criterion should be “making the constitutional order better rather than worse” in terms of the effects decisions have on actual people’s lives according to evolving moral standards. And if a theory tells us that segregation is constitutionally acceptable, then that theory should be promptly discarded—original public meaning be damned.
Using this logic, the Supreme Court got it right in its decision requiring states to recognize same-sex marriage. Consider this passage from the decision:
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
Unfortunately, this is not the only way to think about Constitutional law. Sunstein presents the various interpretive theories—including the various forms of originalism, moral readings, democracy-reinforcing readings, common-law constitutionalism, and common-good constitutionalism—and notes, correctly, that, since the Constitution mentions no theoretical preference, it is largely at the discretion of lawyers and judges to interpret the broad and often vague language of the Constitution in whatever manner they like.
But here’s one thing you cannot do: pretend that adopting an “originalist” stance absolves you from the moral responsibility of defending your decisions, as if they were inevitable, and then deny the fact that all interpretations are unavoidably value-laden. It would be better if we all dropped the charade and said what we’re really after when we “interpret” a constitutional provision one way or another.
The danger here clearly seems to be with originalism, as its proponents fail to offer any moral justifications for their decisions, which, in a deliberative democracy, is anathema. Therefore, we might expect a more passionate and thorough critique of this misguided theory. Instead, Sunstein offers a more round-about critique under the questionable guise of objectivity, and the reader is left to piece things together themselves, at least for the first half of the book. (For a more forceful and substantive critique of originalism, read Erwin Chemerinsky’s masterpiece Worse Than Nothing: The Dangerous Fallacy of Originalism).
And so, you’re three chapters in and halfway through the book before Sunstein tells you what he really thinks; namely, that the best theory of interpretation is a form of Rawlsian reflective equilibrium that forces you to abandon theories that produce morally reprehensible results (big surprise, this means originalism). It’s not that I think Sunstein is wrong (in fact, I think he’s right), it’s just that it takes him a lot of words to get there (straining the reader’s patience along the way).
But it makes a lot of sense; if a theory of interpretation results in blatant discrimination, for example, you’d think it would be rather obvious that the theory should be discarded. It’s actually a shame that it takes a book-length explanation to make the case as to why this is preferable (but unfortunately, it probably does).
The originalist, of course, can still counter that they are perfectly fine with the fact that originalism sometimes produces morally reprehensible results (like the implicit support of segregation) because it is not the job of the courts to monitor the country’s collective moral standing; that’s the job, say the originalists, of Congress, and of a democracy’s elected representatives.
But this seems to be a rather weak and evasive response. If the Constitution does not impose any interpretive theory on us (it doesn’t), and we are then free to select our own theory, then why in the world would we want to choose a theory that produces obviously immoral results, that we can all more-or-less agree on, in specific cases? This is Sunstein’s primary argument, and it's hard to argue against.
In fact, the whole “it’s not my job or problem” attitude among conservative politicians and judges grows tiresome; imagine going to a job interview and saying, “this job doesn’t seem all that valuable, and I’ll look the other way if terrible things happen on my watch.” Well, you probably wouldn’t get hired, and yet we continue to elect politicians that openly express their hatred for the government and then appoint judges that openly express their contempt for any form of judicial oversight (even as they engage in judicial activism by, for example, granting corporations “free speech” rights).
This is, frankly, madness. And Sunstein does a decent job, in his own meandering way, of exposing it. But again, I think Chemerinsky’s book does a far better job.
Here’s a final consideration: Sunstein doesn't mention this, but to my mind, the entire originalism/nonoriginalism debate obscures the real issue, and conceals the real fault line we should be focused on.
Because the Constitution is written ambiguously, we can always interpret it either broadly or narrowly. For example, the First Amendment grants us rights to free speech, which we could interpret as protecting pretty much all speech, including hate speech, libel, and false advertising (broad application), or, alternatively, as protecting free speech except in carefully defined circumstances, like the inciting of violence (a more narrow application). The relevant concern here is not “original intent” or even “democracy-reinforcement” but rather the granting of the appropriate scope of rights—by expanding or contracting them—that is consistent with evolving moral standards of justice. (And since the founders wrote the Constitution in what appears to be an intentionally vague way, it seems like this is more likely what they envisioned.)
Thought of in this way, our theory passes the gold standard test of Brown v. Board of Education. We can say that Brown was ruled correctly because the “equal protection clause” of the Fourteenth Amendment was correctly expanded, or more broadly applied. Whereas originalism, by contrast, tells us Brown was decided incorrectly, and that segregation should be constitutional, our idea that the equal protection clause should be applied more broadly than the founders conceived not only correctly decides Brown, but can also be used to correctly decide future cases of discrimination. And if it’s ever taken too far, we can then talk about narrowing its scope—without ever having to speculate about the intentions of individuals who have been dead for hundreds of years. Is this not preferable?
In other words, when we interpret the Constitution, or decide a case, we must decide how broad or narrow our interpretation or decision is, who is impacted, and whether or not the results seem generally fair. Originalists (and all justices) are basically doing this anyway, but by focusing on the broad/narrow divide, and the inevitable trade-offs involved, at least they’ll be doing it transparently, without hiding behind the fallacy of “originalism.” Currently, the Supreme Court is slowly eroding our rights, which they don’t even have to justify other than by referencing some nebulous idea of “original public meaning,” which should entirely piss you off.
November 14, 2023
Reconstructing the foundations of American constitution
To determine the meaning of the Constitution, the U.S. Supreme Court Justices use one of several methods of constitutional interpretation. In some cases, the meaning of the constitution is apparent from the text itself, but much of the Constitution is broadly worded, leaving room for the Court to interpret its provisions before it applies to a particular circumstance. For example, the Second Amendment reads, A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed. Does this right extend to all citizens, or only to militia. It is unclear, but the 2008 Supreme Court ruled that every American has the constitutional right to bear arms.
To choose a theory of interpretation, the author says that justices seek reflective equilibrium, which means that fixed points in the constitution are relevant. These fixed points are related to morality and justice. Among the methods of constitutional interpretation include Textualism, adhering to the text of the Constitution; Semantic originalism, deciding on the meaning of words; Original Intentions, based on the idea of authorial intentions or what went through the minds of the framers of the constitution; the original public meaning; the ratifiers' expectations; protecting democracy, democracy-reinforcing judicial review; Traditionalism that observes long-standing traditions; and moral readings that makes best moral sense. These methods have both benefits and disadvantages. Moral readings are unmoored or dangerous. Who are judges to tell us what morality is. Clarence Thomas is a good example for originalist judge, and we heard a lot about it during the confirmation hearing of Judge Bork during Ronal Reagen presidency, when he said that he would be following a literal interpretation of the framer’s language and intent. The extent of such applications is evident in recent SCOTUS decisions like the ban on abortion. Justice Clearence Thomas suggested that other cases that rest on the right to privacy must be reviewed. Specifically, cases protecting contraception access and same-sex relationships. In addition, regulating the social media companies which have too much control over online discussion about political and economic events. These digital platforms provide avenues for historically unprecedented amounts of speech which is controlled by a few people in the organization.
The U.S. Constitution as it stands now protect the Islamic Sharia Law and its core beliefs that include, jihad and Fatwa orders are religious duties, and so are killing apostates and infidels, blasphemy laws, practicing Ummah and Sharia. The constitutional experts must weigh in on these topics. It is pertinent to note that the European Court on Human Rights has ruled more than once that Sharia is “incompatible with the fundamental principles of democracy.” However, it has effectively legitimized an Islamic blasphemy code in the interests of "preserving religious peace" in Europe.
The author states that the Constitution must be defended on the ground that it makes the relevant constitutional order better rather than worse. But he doesn’t define what is better or worse, and for whom is it better? This book needs some work that includes some edits.
To determine the meaning of the Constitution, the U.S. Supreme Court Justices use one of several methods of constitutional interpretation. In some cases, the meaning of the constitution is apparent from the text itself, but much of the Constitution is broadly worded, leaving room for the Court to interpret its provisions before it applies to a particular circumstance. For example, the Second Amendment reads, A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed. Does this right extend to all citizens, or only to militia. It is unclear, but the 2008 Supreme Court ruled that every American has the constitutional right to bear arms.
To choose a theory of interpretation, the author says that justices seek reflective equilibrium, which means that fixed points in the constitution are relevant. These fixed points are related to morality and justice. Among the methods of constitutional interpretation include Textualism, adhering to the text of the Constitution; Semantic originalism, deciding on the meaning of words; Original Intentions, based on the idea of authorial intentions or what went through the minds of the framers of the constitution; the original public meaning; the ratifiers' expectations; protecting democracy, democracy-reinforcing judicial review; Traditionalism that observes long-standing traditions; and moral readings that makes best moral sense. These methods have both benefits and disadvantages. Moral readings are unmoored or dangerous. Who are judges to tell us what morality is. Clarence Thomas is a good example for originalist judge, and we heard a lot about it during the confirmation hearing of Judge Bork during Ronal Reagen presidency, when he said that he would be following a literal interpretation of the framer’s language and intent. The extent of such applications is evident in recent SCOTUS decisions like the ban on abortion. Justice Clearence Thomas suggested that other cases that rest on the right to privacy must be reviewed. Specifically, cases protecting contraception access and same-sex relationships. In addition, regulating the social media companies which have too much control over online discussion about political and economic events. These digital platforms provide avenues for historically unprecedented amounts of speech which is controlled by a few people in the organization.
The U.S. Constitution as it stands now protect the Islamic Sharia Law and its core beliefs that include, jihad and Fatwa orders are religious duties, and so are killing apostates and infidels, blasphemy laws, practicing Ummah and Sharia. The constitutional experts must weigh in on these topics. It is pertinent to note that the European Court on Human Rights has ruled more than once that Sharia is “incompatible with the fundamental principles of democracy.” However, it has effectively legitimized an Islamic blasphemy code in the interests of "preserving religious peace" in Europe.
The author states that the Constitution must be defended on the ground that it makes the relevant constitutional order better rather than worse. But he doesn’t define what is better or worse, and for whom is it better? This book needs some work that includes some edits.
March 24, 2024
I tried on several occasions but just couldn’t get beyond 40 or so pages in this one. I understood that the author intended to argue against the concept of originalism in the interpretation of the Constitution but, for me, every sentence was painful to read. I do try to pick up a civics book on occasion to stay up to date on current events, theories, etc. but perhaps this one was intended for the scholarly audience. Either that or I was just bored with this one. I do think the topic is worthwhile for a book. Maybe next time!
Read
August 9, 2024Super interesting and a pretty great entry into thinking about constitutional interpretation. The writing was not hard to understand or conceptualize. Sunstein was incredibly honest about his person opinions which I really liked and this was inconsequential toward his central point which was not arguing for his preferred method at all.
April 2, 2024
I helpful review of various theories used by jurists and others to understand and interpret the Constitution. The book certainly helped me get a grasp on my own discomfort with the direction of the current court. I recommend!
September 8, 2023
3.5 stars
May 10, 2024
A good primer of terms and ideas surrounding modern and historic constitutional interpretation—helpful for me as a teacher looking at a new civics unit for my 9th graders in 2024-25.
July 17, 2025
”Some people might”…”For other people”
Some good material in this, but the title is misleading. The author never actually tells us how to interpret the constitution. He takes us through the various popular methods for interpretation and the arguments made in favor of those methods. His big thesis is that any method of interpretation requires that we strive for a “reflective equilibrium,” that we square our moral principles with judgements about specific cases. Sure. He also sort of works towards making a very soft case for why we should reject traditionalism/originalism and embrace moral-ish readings of the constitution. I agree with all of this. Makes sense. The author unfortunately does not make this case very well. What probably could’ve been an essay was turned into a short book. He writes in circles to make his argument, slaps hypothetical questions on top of each other. It’s just poorly written, and poorly edited. Obviously this guy is an authority on the subject, but he doesn’t make this book approachable. At times it reads like an extended literature review. Again, I agree with the arguments he makes and, more or less, the premise he creates in order to make those arguments, but they are made in the least convincing way possible.
Some good material in this, but the title is misleading. The author never actually tells us how to interpret the constitution. He takes us through the various popular methods for interpretation and the arguments made in favor of those methods. His big thesis is that any method of interpretation requires that we strive for a “reflective equilibrium,” that we square our moral principles with judgements about specific cases. Sure. He also sort of works towards making a very soft case for why we should reject traditionalism/originalism and embrace moral-ish readings of the constitution. I agree with all of this. Makes sense. The author unfortunately does not make this case very well. What probably could’ve been an essay was turned into a short book. He writes in circles to make his argument, slaps hypothetical questions on top of each other. It’s just poorly written, and poorly edited. Obviously this guy is an authority on the subject, but he doesn’t make this book approachable. At times it reads like an extended literature review. Again, I agree with the arguments he makes and, more or less, the premise he creates in order to make those arguments, but they are made in the least convincing way possible.
December 22, 2023
Unfocused and disappointing. I am on the same ideological side as Sunstein but I found myself unconvinced by his arguments.
Displaying 1 - 10 of 10 reviews