How to Interpret the Constitution

Sunstein has produced an extraordinary work that manages to be challenging but accessible to both specialists and nonlawyers. Its core idea is that because the U.S. Constitution offers no instructions for its own interpretation, citizens and judges must choose among many possible theories of interpretation (for instance, traditionalism, originalism, and common-good constitutionalism) to discover its meaning beyond the bare bones of the text. The only way to choose, he argues, is to depart from the text to define certain “provisional fixed points,” that is, moral and political judgments that are “both clear and firm” and then ask whether the application of a particular theory would preserve the most important of these fixed points. For instance, at this stage in the country’s evolution, a theory that allowed the government to discriminate on the basis of race or sex would not be acceptable and could be dropped from consideration. A theory must also be jettisoned if it flies in the face of the realities of life in the United States measured from the highest level of generality down to specific cases. Further, because the United States is a deliberative democracy, popular preference is not sufficient grounds for choosing one theory over another: it must be justified by reasons. Sunstein carries the novice reader across this difficult terrain without simplifying the subject and manages to let his own passionate views shine through without shortchanging others. The book is an education.