the partial constitutionby cass r. sunstein

The Partial Constitution by Cass R. SunsteinReview by: Robert MeisterPolitical Theory, Vol. 23, No. 1 (Feb., 1995), pp. 182-195Published by: Sage Publications, Inc.Stable URL: http://www.jstor.org/stable/192180 .

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182 POLITICAL THEORY / February 1995

"The Politics of Ethnonationalism," Journal of International Affairs 27 (1973): 1-21; "A Nation Is a Nation, Is a State, Is an Ethnic Group, Is a. . . ," Ethnic and Racial Studies 1 (1978): 377-400; "Nation-Building or Nation-Destroying," World Politics 24 (1972): 319-55; "Nationalism and Its Myth," International Journal of Comparative Sociology 33 (1992): 48-57.

-Bernard Yack University of Wisconsin-Madison

THE PARTIAL CONSTITUTION by Cass R. Sunstein. Cambridge, MA: Harvard University Press, 1993. 414 pp. + vi.

1

The basic premise of this important and wide-ranging book is easy to state: constitutional argument is about the search for baselines against which the legitimacy of governmental action can be measured. Cass Sunstein believes that we have been misled in this search by the tendency to extend the techniques of common law judges to the constitutional realm. Common law courts dispensing compensatory justice take the status quo ante as their legitimate baseline and endeavor to restore it when wrongdoing has occurred (pp. 319-20). To do any more, or any less, would show partiality to one or the other party. In determining the constitutionality of state action, however, courts and other government actors may sometimes also have a duty to consider the justice of the preexisting situation. According to Sunstein, they are then obliged to depart from the model of compensatory justice, and to question whether they can achieve impartiality by treating the status quo ante as if it were a neutral baseline (pp. 348-9). This is true whether the status quo is defined by market relations, common law rights, or individual preferences.

Throughout much of The Partial Constitution Cass Sunstein argues that there is nothing neutral (or prepolitical) about any of these possible baselines for constitutional decision making. The market, he suggests, is itself consti- tuted by a series of political decisions about what harms to others are compensable and what harms are not. These decisions are embodied in the common law rules that cut off remedies for some of the harms that we do (thereby granting us a degree of liberty) and in other rules that allow remedies for some of the harms that are done to us (thereby granting us a degree of security). My liberty and your security are thus interdefinable-they cannot both be maximized within a single system of rules. According to Sunstein, the precise legal-balance between them is always a historically contingent



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political choice that needs to be justified-there is nothing natural or inevitable about it. The legal rules that define the relationship of individual to individual are also political rules that define the relationship of each individual to the state.

Sunstein derives a further argument for thenonneutrality of the status quo from the availability of courts and public officers to enforce these legal rules. Public law enforcement limits both the need for and the possibility of self-help, and inevitably affects the balance of power when bargaining takes place in the shadow of the law. There is thus no general reason why constitutional decision makers should presume the outcome of such bargaining to be a natural and legitimate product of private social ordering, rather than a subject of appropriate constitutional scrutiny. In many cases, moreover, there are good reasons to question the effects of legally created inducements and obstacles (including the cost of litigation itself) on the bargains that individuals might otherwise have made.

Finally, Sunstein argues that constitutional decision makers cannot invoke existing individual preferences as their neutral baseline for evaluating the constitutionality of state action or inaction. Such preferences are themselves a product of (Sunstein says "endogenous to") existing distributions of power and wealth that are in turn partly produced by existing legal rules. Once we recognize that some of our individual preferences would be different under different institutional arrangements, Sunstein believes wemust also acknowl- edge the social conditions of preference-formation to be partly a matter of political choice, and not a politically neutral baseline against which the legitimacy of state action can be judged. Democratic citizens may in fact develop preferences about what their preferences are to be, and he believes that they should be collectively free to invoke such second-order preferences as a legitimate baseline for deliberating about the status quo.

2

Sunstein recognizes that these arguments are not original with him. In showing how political power pervades all legal relations he relies heavily on writings of the Legal Realists, especially Robert Lee Hale and Morris Raphael Cohen, who stressed the ways in which state action pervades the relationship between individual and individual in the common law.' They argued that the common law was not, and could not be, politically neutral, and that legislators had no choice but to either reinforce or offset its preexisting bias.




Once the baseline neutrality of the common law was revealed to be a myth, the obvious problem was how to justify either the status quo or any legal decision that alters it. The Legal Realists of the New Deal era believed that the inevitable nonneutrality of law could only be justified through the open articulation of the public values at stake and the subsequent exercise of democratic choice. Sunstein accepts this premise insofar as it implies that courts should generally defer to legislative efforts to question and reform the status quo, but he vigorously rejects the implication that the courts should defer to the "naked preferences" of the political majority-a view that he associates with Holmes and that is sometimes embraced by Rehnquist (pp. 124-5, 294-5).

Sunstein believes that the lasting judicial legacy of New Deal is that a spirit of democratic pragmatism should replace the futile search for neutrality in constitutional deliberation. As pragmatists, the Legal Realists understood that the translation of individual characteristics into social advantages and handicaps is partly the product of legal presumptions and their enforcement and is hence no less subject to legislative reform than any other "state action." The Realists taught us that whenever we are confronted with some allegedly natural or social disadvantage -such as deafness or poverty-we can always step back and reconsider the baseline of institutional practices that make these traits disadvantageous. Why do we presume this baseline to be normal? Is it something that we could democratically enact if it had to be justified from this time forward as state policy?

By reinterpreting the New Deal jurisprudence as pragmatist (not majoritarian), Sunstein is able to argue that the Warren and Burger Courts did not really reject the New Deal legacy-they merely carried it from the economic to the social realm. He has a point: the landmark legislation of the New Deal said that differences in bargaining power should not be taken as a "natural" baseline for legitimating social disadvantage; the Warren and Burger Courts extended this by attacking the translation of the morally irrelevant facts of race (and later gender) into what Sunstein calls a "caste" system of legally created benefits and disabilities. But Sunstein clearly understands that this is not the way the Warren and Burger Courts reached many of their important decisions in the area of civil rights and liberties. Much of his argument celebrates the Deweyan ideas that are embedded in New Deal jurisprudence, and tries to extend their frank experimentalism to areas of constitutional jurisprudence in which the neutrality of the status quo is still presumed by the Warren Court and its successors.2

By embracing moral pragmatism Sunstein distinguishes himself from another strand of the Realist legacy, represented by prominent members of the Critical Legal Studies movement.3 Like Sunstein, these writers criticize



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much of modern constitutional argument as a futile search for a neutral baseline. Unlike Sunstein, however, they tend to assume that neutrality is the only principle that could justify the use of a baseline. But neutrality within our institutions is impossible, and there is no neutral place to stand outside them; therefore these writers feel they must reject the appeal to any legitimating standards in constitutional argument, and stress rather the importance of free play and the rejection of "false necessity." Those who take this view, according to Sunstein, wrongly presuppose that stability is an intrinsic social evil, and fluidity is an intrinsic social good (pp. 126, 117). For him the nonneutrality of all baselines simply means that one's choice of a baseline must be justified without appealing to the impossible ideal of constitutional neutrality.

Part of this book's sophistication derives from Sunstein's refusal to assert that the critique of a "status quo neutrality" is a knock-down argument against the legitimacy of the status quo. His political point is that the legitimacy and justice of the status quo cannot be presumed for purposes of constitutional argument, and must rather be defended by means of public-regarding reasons. As it happens, Sunstein believes that there are good public-regarding reasons for sometimes using the status quo as a baseline in constitutional argument. Among these are pragmatic judgments of efficiency, respect for the stability of expectations, and so forth.

Such arguments are sometimes persuasive, according to Sunstein, and can provide the best interpretation of particular provisions of the Constitution, such as the contracts clause and the takings clause. If a fair interpretation of the takings clause would use "existing distributions" rather than "appropriate rights" as its baseline, then the Constitution would in most circumstances forbid redistribution of wealth through the large-scale expropriation of private property rather than its regulation. Unlike many Legal Realists, Sunstein believes that a "socialist system would indeed be unconstitutional" (p. 120), even if the equal protection clause might otherwise seem to support it.

This being said, however, Sunstein points out that there are other provisions of the Constitution-certainly the Civil War Amendments, probably the First Amendment-that cannot be fairly interpreted as requiring us to take the legitimacy of the status quo as a baseline. A significant achievement of this book is to allow the constitutional presumption in favor of the status quo to be questioned, and often reversed, without having to rely on a general constitutional presumption against the status quo and in favor of change. To achieve this balance, however, Sunstein must depart from the Realist tradition by qualifying his recognition that the state is never neutral with the claim that a democratic state is nevertheless required to be impartial-a word that he sometimes uses interchangeably with "nonpartisan." Is the distinction




between "neutrality" and "impartiality" any more than a lawyer's sleight of hand?

3

By far the most original aspect of Sunstein's argument arises out of his distinction between the neutrality of the state (which is impossible) and the impartiality of the state (which he believes to be required). Sunstein believes that our Revolution is rooted in a rejection of government based on arbitrary monarchical rule (p. 18), and that "Madisonian" democracy attempts to cure this ill by banning the appeal to "naked preference" (p. 25) in political deliberations. From this he concludes that "the impartiality principle" is the core of our "deliberative democracy." It follows that a "law based solely on the self-interest of private groups is the core violation of the deliberative ideal."

Rather than describing American democracy as a system of majority rule, Sunstein sees the basic structure of the Constitution as a "complex set of precommitment strategies" (p. 21) to insure that we remain a "Republic of Reasons" that are "intelligible to different people operating from different premises" (p. 24). To enter a Republic of Reasons, as Sunstein conceives it, is to deny that the status quo is natural, inevitable, and immune from political change. For Sunstein, however, the mere existence of a deliberative democracy does not legitimate an unjust status quo if the process of deliberation has not occurred, or if the outcome was based on the "naked preferences" of interest group pluralism. One appropriate function of judicial review in a democracy would be to assure that public-regarding reasons for the distribution of benefits and rewards can be demanded in some official forum.

As a historical account of American democracy, Sunstein's view is idi- osyncratic, and somewhat weakly supported. He makes no particular effort to defend his interpretation of Madison, and his account of the structure of deliberative democracy relies on such constitutional elements as the Electoral College (p. 21), which is often regarded as undemocratic and which would almost certainly be abolished if it ever acted as a deliberative body. Moreover, Sunstein's rejection of less deliberative forms of democratic theory that stress interest aggregation, such as simple majoritarianism, relies on a few desultory references to problems in social choice theory, such as the Arrow Possibility Theorem (p. 125). As a historical argument this is unpersuasive: it is one thing to say that the framers were not in fact mere pluralists (p. 25); it is quite another to suggest that their conception of constitutional democracy could



BOOK REVIEWS 187

not have been majoritarian because the simple aggregation of naked preferences may not be fully possible under certain formal assumptions. Sunstein's interpretation of deliberative democracy is not yet plausible as a contribution to the literature on "original intent."

But this is not the level at which the concept of deliberative democracy functions in Sunstein's argument. Sunstein intends his notion of deliberative democracy to be a bridge between his view that the law itself is inherently nonneutral and his equally strong view that the interpretation of the Consti- tution can nevertheless remain nonpartisan. He believes that those who disagree with him on the first point also tend to find "partisanship in disruption of existing distributions" (p. 117). They will then claim to elimi- nate the role of personal preference and prejudice in their own interpretation of the Constitution through a commitment to formalism which would focus on such factors as the original understanding of the Constitution or the strict construction of its text. According to Sunstein, this theory of interpretation has the same defect as the theory of substantive neutrality that it generally supports: both theories "deny their own ultimate dependence on a controversial point of view . . . and then hide that point of view from sight" (p. 118).

Sunstein acknowledges that his own conception of deliberative democracy is substantively nonneutral, but he believes it to be inherently nonpartisan within the relatively broad context of democratic deliberation itself-and in this sense, perhaps, "impartial." A judge who relied on this conception as an interpretive principle would thus have no need to conceal it. This turns out to be important because in Sunstein's view the appropriate test for judging a theory of constitutional interpretation is the kind of society that would be produced by practicing it.4 He concludes that a "theory of interpretation must therefore also be a theory of constitutional democracy" (p. 117)-at least (one might add) in a society that wishes to subject the values of decision makers to democratic scrutiny.

For a political theorist the foregoing argument raises obvious questions: Is Sunstein's real interpretive principle one of institutional transparency, suggesting that a judge should always interpret the law by appealing to the nonneutral principles that are taken to justify the political regime-perhaps deliberative democracy here, but in Great Britain "parliamentary sovereignty" and in China, "Maoism"? Or is there some deeper connection between deliberative democracy and the nature of judicial reasoning as such? Is the notion of a Republic of Reasons a place-holder for an overarching theory of the politico-legal process in which our conventional pictures of legislation, adjudication, and administration could each appear as concrete specifications of the appropriate meaning of democratic deliberation under



188 POLITICAL THEORY/ February 1995

certain assumptions that might then be varied to address problems of repre- sentation, remediation, fact-finding, and the like?

The view developed in 7he Partial Constitution is still too sketchy for us to answer these questions, but Sunstein is an unusually prolific writer and we can expect his answers in the future. For the present he invites us to test his method through the analysis of concrete constitutional problems.

4

How well does Sunstein's method of analysis meet the test of bringing the hidden assumptions of constitutional argument into the forum of deliberative discourse? Much of this book consists of brief (and sometimes repetitious) discussions of contemporary and historical issues. His treatment of state regulation of the economy is a relatively familiar, but very clear, account of the constitutional legacy of the New Deal.5 This legacy denies that government is ever dealing with the natural rights of sovereign individuals bumping heads in a state of nature. Rather, the state is always, and inevitably, reinforcing or offsetting inequalities that are themselves partly products of the law, and that are no less in need of political justification than any state action that might reverse them. The New Deal legacy thus tells us that in the sphere of state regulation of the economy there is simply no such thing as laissez-faire. In this area of the law, however, the notion of deliberative democracy does not generally force a hard choice between upholding a Republic of Reasons and defending majority rule. The real test of Sunstein's theory-and of his liberalism-should comein the areas wherepost-New Deal courts havegiven the notion of laissez-faire new life, such as the areas of freedom of speech and reproductive freedom.

We should expect the more novel aspects of Sunstein's approach to pay off in interpreting the First Amendment jurisprudence of freedom of speech, especially inasmuch as his master principle of impartiality stresses the value of democratic deliberation for its own sake. This is indeed where his analysis of cases proves to be most original and interesting.

The chapter titled "Speech in the Welfare State: ANew Deal for Speech" makes a persuasive argument that the critique of status quo neutrality has not yet reached the First Amendment jurisprudence of the Court. In the name of a free marketplace of ideas, the First Amendment is today increasingly used to protect from government regulation those who control the market in communications (in much the way that the Fourteenth Amendment was once perverted to mainly protect corporate actors from regulation by the states).



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Opposing this view, Sunstein argues that the present marketplace place in ideas should not be presumed to be neutral or just, and that the good-faith efforts of government to promote more equal access should be broadly favored by the Court, as they presently are not. This conclusion follows straightforwardly from his earlier argument that the constitutional guarantee of free speech has a bias in favor of subjecting the legitimacy of the status quo to democratic scrutiny and debate.

Sunstein believes, moreover, that First Amendment analysis should focus on the elements of state power that suffuse the marketplace of ideas itself. His analysis of particular cases thus directs our attention to important questions that are often overlooked: What is the prerogative of constitutionally protected speakers to invoke state power to protect them against those whom they provoke?6 What is the legitimate power of property owners, such as the owners of a shopping mall, to invoke the law of trespass to silence those who wish to speak or protest? In what ways does our legal system allow and cut off the possibility of self-help (through the market or through force) for those who disagree with particular forms of free speech? Sunstein's answers to these questions are balanced and perceptive and, by showing significant parallels between issues that now prove troubling in the free speech area (such as "hate speech") and the regulatory issues faced during the New Deal, he makes a major contribution to First Amendment analysis.7

At its present stage of development, however, Sunstein's approach is somewhat less illuminating in other areas of the law, such as the issue of abortion funding for the medically indigent. This issue has much in common with many other problems of selective funding that arise in the regulatory state, such as the decision to fund public, but not private and parochial, elementary and secondary schools (pp. 304-5, 306-8). Here parents are acknowledged to have a constitutionally protected right to choose accredited parochial schools for their children, even though the government seeks to influence that choice through differential financial incentives that impinge most heavily on the poor.8 Likewise, the abortion-funding debate is not directly concerned with the power of government to ban abortion-a ban that must be found unconstitutional, according to Sunstein, because of the selec- tivity of the compulsion on women (p. 274). Most directly at issue is the duty of government to offset the effects of poverty in influencing a choice between childbirth and termination of pregnancy that women are clearly entitled to make.

Like other selective funding cases, the abortion-funding cases do not present us with an unmediated relation between the state and an individual who must choose, nor do they present us with a direct issue of economic redistribution unmediated by individual choice. Our concern here is with



190 POLITICAL THEORY/ February 1995

those women whose personal choice of abortion or childbirth is subject to being influenced by their economic circumstances and the policies of the state, as well as by their own attitudes towardprocreation. We are thus dealing with a complex relation between state policy, individual preference, poverty, and gender-none of which can be truly neutral in its effect on the others.

Sunstein rightly argues that such an issue cannot be resolved by asking whether the government seeks to influence choice by means of subsidies or penalties-by means of carrots or sticks (pp. 299-300, cf. 69-70). Recogniz- ing this obvious truth is an advance of the Court's reasoning in cases such as Harris v. MacRae (448 U.S. 297 [1980]), but it does not get us far beyond the notion that government regulation should not "unduly burden" the right to abortion. This is the position that the Supreme Court has now reached in Planned Parenthood v. Casey (112 S. Ct. 2791 [1992])-an opinion that is broadly consistent with Sunstein's own approach, but that provides little help on the abortion-funding question. Can Sunstein take us further?

As a basis for judging the constitutionality of the government's abortion- funding decision, Sunstein would urge us to review the legitimacy of the status quo as itself the product of law. He rightly points out that the debate over abortion funding largely hinges on what the appropriate baseline is for considering what would otherwise occur. (Is it a world in which neither childbirth nor abortions are funded? Or a world in which both are funded?) The problem Sunstein does not address, however, is that there are (at least) two different levels at which the status quo is not neutral before the differential funding issue arises, and that these two levels of nonneutrality may work in opposite directions in arguments that purport to justify reforms in state funding policy.

The first level is that of public values. Official nonneutrality at this level concerns the baselinepresumptions that apply to an indigent pregnant woman making her choice. Is childbearing presumed to be beneficial, unless the individual woman has personal reasons for opting out? Or is childbearing presumed to be burdensome, unless the individual woman has personal reasons to desire maternity? Ordinary law is largely about the allocation of presumptions, and in any regulatory regime a legal presumption for or against the value of natality is unavoidable (although there are ways to make any such presumption more easily defeasible by individual women). Whatever presumption the state makes will send a message to women. Part of the debate about abortion is over what the baseline presumption is regarding procrea- tion, and whether other elements of public policy should offset or reinforce it.

The second level-the effect of economic inequality on personal choice- is the one addressed most directly by Sunstein. Is the high cost of abortion



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forcing poor women to have children that they might not otherwise want (as Sunstein clearly believes)? Or is the relatively higher cost of child rearing inducing poor women to have abortions that they might not otherwise want? To claim that comparable government funding of both choices is truly neutral would presuppose that the status quo of poverty has no underlying effect on either choice-a highly questionable assumption in most welfare systems. The point of public funding of abortions for medically indigent women is normally to neutralize for some presumptively undesirable effect of poverty on women's choice. In practice a regulatory regime cannot avoid acting on assumptions about the nonneutral effects of poverty on the natality/abortion choice, given the relative cost of the two options.

A third level might be that of the regulatory state itself. Nonneutrality here concerns the effect of the government funding decision in reinforcing or offsetting the nonneutral effects of the second level on the nonneutral message at work on the first level. In a sense this not a separate level, but it is useful to treat it as separate because even those who agree at the first and second levels may disagree about what the effect of a particular funding choice would be. Would comparable levels of funding for abortion and childbirth offset the effects of poverty by influencing some poor women to have otherwise unwanted children or by influencing some poor women to have otherwise unwanted abortions? Would it reinforce the effects of poverty in either of these ways? And would either change be desirable? (We could easily ask parallel questions about differential funding.)

Combining all three levels of analysis would give us up to eight complex and conflicting views on abortion funding. A few examples will suffice to illustrate the range. Some commentators will assume that poverty discourages childbirth and advocate abortion funding to reinforce this effect and save tax money on child support; others might accept part of this analysis, but view such a policy as a cynical denial of the presumptive benefits of childbirth to many poor women. There will also be some (perhaps including Sunstein) who assume that poverty discourages abortion, and who advocate abortion funding to enable women on welfare to break the cycle of subordination that results from the burdens of pregnancy and maternity; still others will argue that pregnancy and maternity are presumptive benefits provided that they do not further impoverish a woman, and will therefore tend to assume that the effect of poverty in discouraging abortions for women on welfare is socially and morally desirable.

The important point for our purposes is that Sunstein's analysis of abortion funding does not thus far have the virtue of laying bare his (and our) controversial assumptions about the presumptive value of childbirth, the effect of poverty on the natality choice, and ways in which granting or




withholding government subsidies might reinforce or offset this effect. In this area (and others like it) his straightforward New Deal analogy is not enough to open the field of democratic deliberation. Perhaps this is why Sunstein remains vexed by the abortion-funding debate, except in the limited area of funding for abortions due to rape and incest (pp. 315-7) where the effect of poverty is relatively uncontroversial and where being vulnerable to involun- tary pregnancy is clearly a presumptive burden.

We might tentatively conclude that Sunstein's "New Deal" approach tends to work best in cases where only the first and second levels are in play against the third level. His discussion of political speech, for example, is generally illuminating because the constitutional presumption in favor of it is by now relatively uncontroversial. In the area of selective funding of the arts the most pressing question is how the government can avoid conveying an impermis- sible message about artistic viewpoint when it makes its inevitable choice among artists. This problem, too, benefits from Sunstein's analysis. Problems like affirmative action, however, frequently raise controversial questions about both invidious messages and unequal effects. Here Sunstein's approach merely exhorts us to reexamine our choice of baselines. When we are dealing with nonneutrality at more than two levels, Sunstein's critical scrutiny of the status quo neutrality does not seem to go far enough. Quite possibly, his broad-gauged critique of "status quo neutrality" will need to be refined to address the very different types of nonneutrality that arise at different levels of constitutional argument.

5

Perhaps the insufficiency of Sunstein's argument can be explained by his failure to fully explore the tensions between the jurisprudence of the New Deal and that of the Warren Court. The conceptual problem facing the Warren Court was to reconcile judicial deference to the goals of the regulatory state with more searching judicial scrutiny of the impact of regulation on fundamental values. To accomplish this dual goal the Court adopted what now seems a simple expedient: It said that we must focus on only two of our three dimensions at a time. In effect we must look either at the relation between the regulatory state and preexisting market inequality or at the relation between the regulatory state and protected values and groups. To decide a given case, a member of the Warren Court would thus typically ask: Are we in the realm of state regulation to offset or reinforce the nonneutrality of the



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market? Or are we rather in the realm of state regulation that impinges on a constitutionally protected interest or group? In the former case it would be left to the arena of partisan politics and democracy to determine whether the state could legitimately reinforce or offset the inequalities created by the market. (This carries forward the New Deal paradigm.) In the latter case the Court itself would decide whether the affected value or group is only negatively protected, in which case the state is merely barred from penalizing it, or whether the value or group is affirmatively protected, in which case state action is required to affect it positively, if at all.

Almost entirely lacking in the Warren era, however, was direct judicial review of the effect of state regulation on the influence of social inequality on preferred values and protected groups. This problem was there all along, as we now know, but for nearly twenty years the Burger and Rehnquist Courts have danced around it. During this period the abortion-funding and regulation debate became the judicial laboratory in which this issue was tested and eventually certified to be a genuineproblem. Thus, Court has treated abortion regulations sometimes as state regulation of the economy (like any other) and sometimes as state intrusions on fundamental rights (like free exercise of religion). In one case, for example, the Court found that requiring certain affirmative statements by doctors and medical counselors was areal intrusion on the privacy of a woman's choice. Yet in a later case the Court suggested that the decision to require state-funded clinics to tell pregnant women about adoption but not abortion was just like the decision to have Voice of America advocate liberalism but not communism: the state's preference simply did not affect your First Amendment right to choose communism if you wished to do so.? Now, finally, with Casey, the problem of the state's duty to consider its effect on the influence of social inequality on personal choice is finally on the table-and Sunstein's book is there to help illuminate it by connecting it back to a reconsideration of the New Deal.

Despite its incompleteness, The Partial Constitution is thus an agenda- setting book, comparable in importance to that of John Ely's Democracy and Distrust in the 1980s. Sunstein tells us on page 1 that we have entered a new era in constitutional jurisprudence and that the "discussion generated by the Warren Court and its successor is over." (Perhaps it ended with the debate over Bork.) The rest of thebookmakes a largely persuasive case that struggles in the Rehnquist Court are now increasing over the legacy of the New Deal, and over the efforts of conservatives such as Rehnquist (a Jackson clerk) to apply the logic of economic regulation in areas of civil liberties (such as speech and religion) that the Warren Court tended to see through the lens of laissez-faire.




Today, the most lively debate within the Court is over thepermissible ways in which governmental and private actors can attempt to influence the choice of whether and when to exercise constitutionally protected rights. Cass Sunstein and his generation of constitutional scholars are beginning to address this debate on its own terms. For those of us who still sympathize with the Warren Court's legacy, there is no better statement of the task ahead than The Partial Constitution.

NOTES

1. See, for example, Robert Lee Hale, "Force and the State," Columbia Law Review (1935): 286, and "Coercion and Distribution in a Supposedly Non-Neutral State," Political Science Quarterly 38 (1923): 470; Morris Raphael Cohen, "Property and Sovereignty," Cornell Law Quarterly 13 (1927): 8.

2. Sunstein's book is part of the recent trend in legal theory to use a revitalized pragmatism to rescue liberal ideas from the postmodern challenge. For a collection of some leading articles, see Michael Brint and William Weaver, eds., Pragmatism in Law and Society (Boulder, CO: Westview, 1991).

3. The core figures in Critical Legal Studies find a clear line of argument connecting the analytical jurisprudence of Wesley Newcomb Hohfeld, the Legal Realism of Hale and Cohen, Roberto Unger's defense of conceptual plasticity, and the postmodern philosophy of Foucault, Derrida, and others. This connection is drawn explicitly by Duncan Kennedy in "The Stakes of Law, or Hale and Foucault!" in Sexy Dressing (Cambridge, MA: Harvard University Press, 1993), chapter 3. See also Roberto Unger, The Critical Legal Studies Movement (Cambridge, MA: Harvard University Press, 1986), and False Necessity, 3 vols. (Cambridge: Cambridge University Press, 1987). For background, see Joseph Singer, "'he Legal Rights Debate from Benthamto Hohfeld," WisconsinLaw Review (1982): 975; and "Legal RealismNow," Califonia Law Review 76 (1988): 465. See also Hohfeld, Fundamental Legal Conceptions (New Haven, CT: Yale University Press, 1919).

4. On pages 112-3 Sunstein discusses the relatively narrow difference between his view of interpretation and Ronald Dworkin's claimthat ajudge has a duty to use moral theory to interpret the law as "the best it can be." Essentially, Sunstein believes that the judge can only identify what "it" is by appealing to elements in a legal culture that already interpret "it"-a point that Dworkin would have little reason to deny.

5. Cf. the more comprehensive treatment of the same field in Morton Horwitz, The Tranformation of American Law (New York: Oxford University Press, 1992).

6. Sunsteincredits Hale forthis point (p. 206). See also Robert Meister, "Journalistic Silence and Governmental Speech," Harvard Civil Rights-Civil Liberties Law Review 16 (1981): 319, 373-5.

7. Sunsteincarrieshis analysis forwardinhis mostrecentbook, Democracyand theProblem of Free Speech (New York: Free Press, 1993), which is beyond the scope of this review.

8. Pierce v. Society of Sisters, 268 U.S. 510 (1925). I leave aside the question of whether it would be constitutional for government to fund parochial schools on a nonpreferential basis,



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much as it funds church-related hospitals. The issue here is whether government is pernitted not to do so.

9. Cf. Akron v. Akron Center for Reprodt Health, Inc. 462 U.S. 416 (1983) and Rust v. Sullivan 111 S. Ct. 1759 (1991).

-Robert Meister University of California, Santa Cruz



the partial constitutionby cass r. sunstein

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