Liberals need a new constitutional vision to guide their decisions. Cass Sunstein may have it.
By Stephen Pomper
At this summer's convention of the American Constitution Society (a young organization of left-of-center lawyers that serves as a counterweight to the well-established right-of-center Federalist Society), a breakfast panel debated the question: “Is there a Progressive Constitution?”
If the choice of topic signaled a certain defensiveness, there was good enough reason. Today's liberal lawyers are groping around in something of a constitutional fog. Yes, there is a “Progressive Constitution,” in the sense that there are lines of cases dating back to the New Deal era that interpret the Constitution in a manner well-aligned with liberal policy preferences. But is there a coherent method or a philosophy that ties those cases together?
Folks who are trying to muddle through these difficult questions would be well advised to consult Cass Sunstein's slender new book, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America. Try not to get hung up on the hyperventilating title, which does the book a disservice by suggesting that it is a polemic. It isn't. Sunstein, who for years has been the most prominent liberal at the famously conservative University of Chicago law school, has cultivated an impressively clear-eyed view of strengths and weaknesses on both sides of the ideological divide. And while this book certainly delivers on its promise to offer a clear (and often persuasive) takedown of the conservative legal movement, it also offers unvarnished criticism of the left's constitutional traditions. But perhaps most important, Sunstein also takes the opportunity to sketch out the framework for an approach to constitutional interpretation that centrists and liberals may find attractive.