…despite the fact that Glenn Reynolds and Eugene Volokh (both men I admire) seem to think well of him.
I heard an audio clip on the radio on my way home this afternoon. (Yes, I was tuned into Glenn Beck for the 15 minute drive home. My iPod is on the fritz until I can reload the operating system.) That clip was taken from this C-SPAN interview:
Here’s the key portion of the transcript:
Let me explain the division among conservative legal thinkers. Some conservative legal thinkers like Justice Scalia and Justice Thomas think that the Constitution means what it originally meant. That means we should understand the document by going into a kind of time machine and capturing the public understanding of the public that ratified the document a century, or more than a century ago.
So that is a very distinctive approach. It would involve quite radical changes in our existing Constitutional understandings, and Justice Thomas is entirely clear on that. He’s voted to overturn the Supreme Court’s own precedents over twenty times.
He says that like it’s a bad thing. I’m sure Professor Sunstein doesn’t object to Brown v. Board of Education in which the Supreme Court overturned its own precedent.
I’ve stated precisely where I stand on the question of Originalism and why in Cut-‘n-Paste. Let me repeat some of the quotes that piece opened with:
On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed. –Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322 Paul K. Sadover
It is important, likewise, that the habits of thinking in a free country should inspire caution in those intrusted with its administration to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism…. If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield. – George Washington, Farewell Address, 1796
Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government. – James Madison
The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now. — South Carolina v. US, 199 U.S. 437, 448 (1905)
A provision of the Constitution, it is hardly necessary to say, does not admit of two distinctly opposite interpretations. It does not mean one thing at one time and an entirely different thing at another time. – Justice Sutherland (dissenting), Blaisdell (1934)
I quite agree with the opinion of the court that whether the legislation under review is wise or unwise is a matter with which we have nothing to do. Whether it is likely to work well or work ill presents a question entirely irrelevant to the issue. The only legitimate inquiry we can make is whether it is constitutional. If it is not, its virtues, if it have any, cannot save it; if it is, its faults cannot be invoked to accomplish its destruction. If the provisions of the Constitution be not upheld when they pinch, as well as when they comfort, they may as well be abandoned. – (Ibid.)
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. – West Virginia v Barnette (1943)
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or…the press” also means the Internet…and that “persons, houses, papers, and effects” also means public telephone booths….When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases – or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences. – Judge Alex Kozinski, dissenting, Silveira v Lockyer denial to re-hear en banc, 9th Circuit Court of Appeals, (2003)
I respectfully dissent from our order denying rehearing en banc. In so doing, I am expressing agreement with my colleague Judge Gould’s special concurrence in Nordyke v. King, and with the Fifth Circuit’s opinion in United States v. Emerson, both taking the position that the Second Amendment secures an individual, and not collective, right to keep and bear arms.
The panel opinion holds that the Second Amendment “imposes no limitation on California’s [or any other state’s] ability to enact legislation regulating or prohibiting the possession or use of firearms” and “does not confer an individual right to own or possess arms.” The panel opinion erases the Second Amendment from our Constitution as effectively as it can, by holding that no individual even has standing to challenge any law restricting firearm possession or use. This means that an individual cannot even get a case into court to raise the question. The panel’s theory is that “the Second Amendment affords only a collective right,” an odd deviation from the individualist philosophy of our Founders. The panel strikes a novel blow in favor of states’ rights, opining that “the amendment was not adopted to afford rights to individuals with respect to private gun ownership or possession,” but was instead “adopted to ensure that effective state militias would be maintained, thus preserving the people’s right to bear arms.” It is not clear from the opinion whom the states would sue or what such a suit would claim were they to try to enforce this right. The panel’s protection of what it calls the “people’s right to bear arms” protects that “right” in the same fictional sense as the “people’s” rights are protected in a “people’s democratic republic.”
. . .
About twenty percent of the American population, those who live in the Ninth Circuit, have lost one of the ten amendments in the Bill of Rights. And, the methodology used to take away the right threatens the rest of the Constitution. The most extraordinary step taken by the panel opinion is to read the frequently used Constitutional phrase, “the people,” as conferring rights only upon collectives, not individuals. There is no logical boundary to this misreading, so it threatens all the rights the Constitution guarantees to “the people,” including those having nothing to do with guns. I cannot imagine the judges on the panel similarly repealing the Fourth Amendment’s protection of the right of “the people” to be secure against unreasonable searches and seizures, or the right of “the people” to freedom of assembly, but times and personnel change, so that this right and all the other rights of “the people” are jeopardized by planting this weed in our Constitutional garden. – Judge Andrew Jay Kleinfeld, dissenting, also from Silveira v Lockyer denial to re-hear en banc, 9th Circuit Court of Appeals, (2003)
It is literally true that the U.S. Supreme Court has entirely liberated itself from the text of the Constitution.
What ‘we the people’ want most of all is someone who will agree with us as to what the evolving constitution says.
We are free at last, free at last. There is no respect in which we are chained or bound by the text of the Constitution. All it takes is five hands.
What in the world is a ‘moderate interpretation’ of the text? Halfway between what it really says and what you want it to say? – Antonin Scalia, excerpts from a speech quoted in the New Orleans Times-Picayune, 3/10/04
Something has gone seriously awry with this Court’s interpretation of the Constitution. – Clarence Thomas (dissenting) Kelo v New London (2005)
Obliterating a provision of the Constitution, of course, guarantees that it will not be misapplied. – (Ibid.)
The interview with Sunstein seems to be from 2006 during or just previous to the Alito Supreme Court nomination hearing. Sunstein had just published his book Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America. You’ll note that he doesn’t seem to have a problem with extreme Left-Wing courts.
Some of Sunstein’s other books:
Free Markets and Social Justice. – I’d like it if someone could just define “social justice” and illustrate how it differs from plain old everyday justice.
Nudge: Improving Decisions about Health, Wealth, and Happiness – Co-written with Richard Thaler, this book is described at Barnes & Nobel thus:
Every day, we make decisions on topics ranging from personal investments to schools for our children to the meals we eat to the causes we champion. Unfortunately, we often choose poorly. The reason, the authors explain, is that, being human, we are all susceptible to various biases that can lead us to blunder. Our mistakes make us poorer and less healthy; we often make bad decisions involving education, personal finance, health care, mortgages and credit cards, the family, and even the planet itself. Thaler and Sunstein invite us to enter an alternative world, one that takes our humanness as a given. They show that by knowing how people think, we can design choice environments that make it easier for people to choose what is best for themselves, their families, and their society. Using colorful examples from the most important aspects of life, Thaler and Sunstein demonstrate how thoughtful “choice architecture” can be established to nudge us in beneficial directions without restricting freedom of choice.
Who is this “we” that is entrusted to do the “design(ing) of choice environments”?
I suspect that it would be Thomas Sowell’s “Anointed” – the intellectual elite.
Or, how about:
Animal Rights: Current Debates and New Directions, described at B&N:
Cass Sunstein and Martha Nussbaum bring together an all-star cast of contributors to explore the legal and political issues that underlie the campaign for animal rights and the opposition to it. Addressing ethical questions about ownership, protection against unjustified suffering, and the ability of animals to make their own choices free from human control, the authors offer numerous different perspectives on animal rights and animal welfare.
What, we humans get “nudged” but animals don’t?
And then there’s:
A Constitution of Many Minds: Why the Founding Document Doesn’t Mean What It Meant Before – Like HELL it doesn’t.
And finally, this:
The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More Than Ever – If you needed any more evidence that Cass Sunstein doesn’t understand the founding philosophy of this nation, that book title is enough all by itself.