Tuesday, May 20, 2014

Reading between the lines

The only important question here is, did Cass suggest the headline? (And if so did he do it through Dick Windsor?)


Blogger LAGuy said...

The title is pretty stupid, but I doubt Sunstein had anything to do with it. I remember years ago Posner complaining how much he hated the New Republic title for one of his pieces: "What Am I, A Potted Plant?"

Why don't you tell us what you think of the piece. I think it's mostly fair. Epstein's done important work, but it's hard to claim he's got a better historical claim on the Constitution, yet you regularly hear conservatives with sympathies for some of Epstein's view talking about how we need to return to the vision of the Founders, when what they want is mixed with modern concepts.

Where Sunstein falters is his conclusions. He write as if it's obvious wrong to "jettison many decades of constitutional law on the basis of a general theory that the Constitution does not explicitly encode and that the nation has long rejected." He then notes "a judicially engineered constitutional revolution is not what America needs now."

First, who rejected it? That's Sunstein's hope, not the truth. All sorts of things have been foisted on the public one way or another (often through unelected judges) that the public doesn't generally want--from many types of welfare to affirmative action to some abortion laws to the Affordable Care Act and so on. Sometimes Sunstein will list his parade of horribles that will happen if the Right Wing takes over the courts, and usually half the stuff is what America would vote for on a straight referendum (and the other half doesn't sound so bad either.)

But more important, what's the big deal about jettisoning a lot of old rulings? Sure, stare decisis means something, but it's not the only thing. Can Sunstein explain how we need to protect those old decisions that themselves jettisoned decades of earlier rulings? So the old revolution must remain, but we're not allowed to have a new one?

And just what is the problem that he's got with freedom of contract? It's got a pretty solid history in our jurisprudence, and the idea that's it's obviously outmoded, or can't be sustained by any reasonable Constitutionally theory is whistling past the graveyard.

If Republican Presidents had chosen more wisely, we might already have had much of this revolution. And Cass would be writing in the New Republic demanding a return of the Constitution in Exile.

1:28 AM, May 20, 2014  
Anonymous Anonymous said...

If Republican Presidents had chosen "more wisely" it's also possible the idea of "Republican presidents" might be a quaint historical concept.

The things people who vote for in a referendum would no doubt disappoint constitutionalists of all persuasions.

Nice to see the The New Republic is still publishing

2:55 AM, May 20, 2014  
Blogger ColumbusGuy said...

What do I think of it? Let's see. I'd say it's an example of his best work.

4:42 AM, May 20, 2014  
Anonymous Denver Guy said...

I am a real fan of Cass' writing, even if I disagree with a fair number of his positions. His book "The Vote", a collections of essays on the Bush v. Gore decision of 2000, had great influence on me, precisely because as editor, Sunstein remained fair, and seemed to truly recognize that there were two legitimately argued sides to the debate.

Here too, I think he is eminently fair to Epstein's book (which of course I haven't read yet, but now want to). Epstein was a large influence on me in law school (moreso than Sunstein, since I never actually had him for a class). I have a native instinct agreeing with Epstein that, on the margins at least, government regulation tends to do more harm than good, if only because of the unintended distortion it causes (consequential damages) to business and personal behaviors.

I too am not troubled by Epstein's call to throw over decades of judicial precedents. I am always bothered by the hypocrisy of left and right legal theorists who cry "stare decisis" when their cherished precedent is questioned, while hardly hesitating to call for the overturn of case law they despise. I like to ask liberal lawyers who can't stand Citizen's United if they will still be calling for it's overturn in 10 or 20 years? If they say yes, I ask why they feel it is improper for folks on the right to still call for the overturn of Roe v. Wade.

8:34 AM, May 20, 2014  

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