Cass Sunstein is the most cited active law professor and a barometer of the left-liberal jurisprudential thought that dominates the legal academy. For this reason alone, his recent book, How to Interpret the Constitution, is worth reading. And it is well-written and novel, even if disjointed and unpersuasive.

Sunstein’s premise is that a theory of constitutional interpretation should make society better rather than worse. To figure out whether a theory will do that, Sunstein believes we must begin by assessing the consequences of important constitutional cases. Correct outcomes in these cases constitute the “fixed points” for a theory. They are “provisional,” because the interpreter must then make sure that these fixed points “line up with one another and do not contradict one another.” To arrive at the final choice of an interpretive theory, a judge may also consider cross-cutting considerations, like the capacity of the theory to make judgments based on objective considerations rather than personal preferences.

Thus, Sunstein argues that one’s fixed constitutional points will not simply be one’s fixed policy points. He claims that an interpretive theory’s mediation between our assessment of the outcomes of particular cases and more general considerations applies John Rawls’s reflective equilibrium method, in which provisional moral judgments about particular situations are tested against more general theories of morality, like utilitarianism, to help us arrive at a correct moral theory.

In the book, Sunstein offers his own fixed points. They include the rightness of Brown v. Board of Education, the constitutionality of broad delegations to the executive branch, and the constitutionality of regulating independent expenditures in support of political campaigns. These are apparently points to which any reasonable person should assent, although he also has some points with which he thinks reasonable people may disagree. He argues that taken together, his fixed points currently rule out various interpretive theories popular on the right, such as originalism and traditionalism, as well as theories of judicial review extremely deferential to the legislature like that of James Bradley Thayer.

Addressing Originalism

Sunstein’s book provides yet more evidence of the rise of originalism. When I went to law school, the theory received too little attention to require description, let alone refutation. Sunstein, in contrast, feels the need to include substantial space for originalism in his survey of constitutional theories.

But he gets Mike Rappaport’s and my views about originalism wrong in multiple ways. He describes our original methods originalism as follows: “Some people think that the Constitution must be interpreted in a way that is consistent with the ratifiers’ views about how it should be interpreted. On that view, judges need to follow the ratifiers’ theory of interpretation. If the ratifiers believed that judges should follow the original public meaning, judges must follow the original public meaning.”

But that summary is wholly inaccurate. We do not conclude that interpreters are bound to follow what the ratifiers believed the interpretive rules to be. As we say in Originalism and the Good Constitution, “Under an original public meaning foundation, the interpretive rules are those that an informed observer would have reasonably believed applied to the Constitution.” What various ratifiers believed might be evidence of the interpretive rules but they do not determine their content.

Nor do we assert that an answer to an interpretive question depends on what the ratifiers believed, as Sunstein appears to think. The answer to an interpretive question would depend on what an informed observer with knowledge of the interpretive rules would believe the answer to be. It follows that Sunstein is also wrong to think that we believe that “if ratifiers did not have a view about how the Constitution should be interpreted we are stuck; we just have a gap.” Indeed, we have argued, to the contrary, that the Constitution contains no gaps of which we are aware. The breadth of Sunstein’s misunderstanding about us should make readers cautious about crediting his descriptions of competing theories.

More generally, Sunstein may exaggerate the differences between various originalist theories. In most instances, originalists are likely to come to the same conclusions based on common evidence.

What is odder about Sunstein’s treatment of originalism is that he does not discuss in any detail the various justifications originalists have for following the original meaning. They have addressed the question Sunstein seeks to answer in his book—how to choose a constitutional theory. And some, like Sunstein, have focused on consequences. Sunstein insists that a claim about the Constitution’s linguistic meaning does not by itself mandate a particular form of interpretation. But many, if not most, originalists agree with him on this point and have thus developed a rich variety of theories about why the original meaning should bind us today. Given that Sunstein is offering his own theory of how to determine the best method of interpretation, he would usefully have brought it into conversation with the many justifications for originalism (and other interpretive approaches as well).

Sunstein’s Theory

The first problem with choosing an interpretive method principally based on how you think certain important cases should come out is that such a theory of “fixed points” paradoxically unfixes the Constitution. The views of individual judges and citizens about what cases an interpretive theory must uphold can and will differ radically. Sunstein’s fixed points are those of a liberal Democrat. A libertarian would have other fixed points. A conservative populist still others because all differ profoundly in their view of the world. To be sure, Sunstein warns against choosing fixed points simply because of one’s policy preference. One should take account of such considerations as its connections to the text of the document. But the array of anyone’s fixed points necessarily reflects an overarching ideology. Sunstein’s points undoubtedly do. Moreover, only those who are engaged in interpreting the Constitution are likely to have any sense of its fixed points. It is a wholly elite enterprise. A Constitution needs to be built bottom-up rather than top-down.

But a constitution cannot be a good one if it systematically reflects a politics that is not widely shared. Even if one is a libertarian, a libertarian Constitution will be a bad one if libertarianism does not enjoy any consensus. It will not provide an anchor or a framework for an enduring government but only a source of continuing crisis as most citizens try to avoid its mandate. Ditto for a left-liberal Constitution. And given that people have sharply different views, they cannot be trusted to set them aside to choose a Constitution that will gain sufficiently broad support. That is why a good Constitution, like our original one, as amended, allows for significant opportunity for political disagreement, particularly at the state level, to allow ordinary politics to track diverse and changing views but within a constitutional framework that is more broadly shared.

A second problem with Sunstein’s program is that the interpretive philosophy it points to is unlikely to provide a rule of decision for the future. It is hardly more determinate than an approach that simply weighs the consequences of each decision according to the judge’s practical evaluation. If one begins with one’s own intuitions about the appropriate results of cases, there is no guarantee that these intuitions create more than a series of discrete judgments. It does not follow that any jurisprudential principle can connect these data points and provide guidance for the future.

To be sure, Sunstein argues that his fixed points must become part of a reflective equilibrium with theories of interpretation, just as John Rawls suggests we should ground our morality in a reflective equilibrium that mediates between our moral evaluations of specific issues and more general moral theories like utilitarianism and deontology. But Sunstein emphasizes that certain controversial cases must come out right, and he does not show in detail how any interpretive theory could make them do so.

At times, he suggests that his own preferred theory is one that would interpret the Constitution to promote the democratic process. But that claim merely shows the malleability of any philosophy based in substantial part on policy considerations rather than methodological premises, like adherence to original meaning or precedent. For instance, he asserts as one of his own fixed points (albeit one with which reasonable people can disagree) that Dobbs was wrongly decided. Yet Dobbs promotes democracy by giving back to the states a contentious moral issue about which people have provided profound reasons for continuing disagreement.

Another of his fixed points (one about which reasonable people apparently cannot disagree) is that the Constitution must permit Congress to grant broad discretion to administrative agencies. Yet many have thought that such discretion undermines rather than reinforces democracy because unaccountable bureaucrats then gain sway over important policy matters. Another of Sunstein’s fixed points on which reasonable people must agree would further exacerbate that democratic deficit, since our Constitution must, Sunstein holds, allow Congress to protect the independence of agency heads from the President’s control.

Indeed, one of those unreasonable people who thought that excessive delegation was antidemocratic was none other than John Hart Ely, who in his famous book Democracy and Distrust originated the “democracy reinforcement” theory of judicial review that Sunstein favors as an abstract matter. Ely worried that the decline of the nondelegation doctrine undermined deliberative democracy. He observed that the concern with delegation “is not that such ‘faceless bureaucrats’ necessarily do a bad job as our effective legislators. It is rather that they are neither elected nor reelected and are controlled only spasmodically by officials who are.” The concept of democracy is too fundamentally vague and contested to provide any clear rule to tell us whether Sunstein or Ely is correct as a legal matter.

Yet another of Sunstein’s fixed points is that Congress should be able to regulate independent expenditures on political messages in favor of candidates at election time. But such restrictions on political speech would be determined by legislators whose reelection may depend on that very speech. It is hardly obvious that such involvement would promote democracy. These restrictions reduce the amount of information in political campaigns. They empower the press, celebrities, and academics who, because of their positions, need less money to get out their message about politics. It is all too easy for abstract political principles to simply become a cover by which people declare that policies favoring the interests of people like them are beyond reasonable dispute.

The final problem is more subtle. All of Sunstein’s fixed points relate to currently or recently contested issues. But the point of choosing an interpretive theory is not only—indeed not principally—to protect past decisions, but to provide guidance for the future. Past results are no guarantee of future performance, particularly when Sunstein does not review all constitutional history to see how his theory would have fared in the past. For instance, one of his complaints about originalism is that it cannot justify Brown v. Board of Education. But, as Mike Rappaport and I note, if the Court had followed the original meaning of the Constitution after reconstruction, it would have invalidated Jim Crow and prevented illegal voting discrimination against African Americans. Brown might well have not been necessary, and many African Americans would have enjoyed more civil rights long before the 1960s. The general point is that to choose his interpretive theory by fixed points, Sunstein would have to canvass the entire history of constitutional law to determine what is the best theory of interpretation under changing and unpredictable circumstances.

Thus, Sunstein’s theory of fixed points suffers from multiple fatal problems. It requires knowledge that is difficult if not impossible to acquire, it fails to create a jurisprudence of any determinacy, and it provides a recipe for intractable constitutional division. No Court justice—not even the opponents of originalism for whom this book is written—will use it to choose among constitutional theories. But like Sunstein’s other work, the current generation of law professors is sure to cite it widely.