Biased constitution

Author: (American) Cass Sunstein, Song Hualin, Bi Jingyue
Publisher:
Publish Date: 2005-06-01
Features: In this critical work on society, Sunstein breathes new life into an ancient idea: that we mistakenly believe our current practices are neutral or natural. Sunstein's remarkable strength lies in his ability to explore complex issues, revisit these vast Supreme Court rulings, and meticulously explain why these rulings were wrong. The book paints a vivid picture of the history and theory of the U.S. Constitution, and it deserves a wide readership. —Don Herzog, Professor of Law at the University of Michigan
The Partial Constitution sets a benchmark for constitutional scholars of this era, offering compelling arguments for the reconstruction of constitutional law. Sunstein's themes range from abortion to the burning of crosses, posing inescapable challenges to the traditional constitutional analysis of the common law tradition. —Daniel A. Farber, Professor of Law at the University of Minnesota
Sunstein redefines liberalism, no longer blindly distrusting government but instead insightfully recognizing that the desirable use and abuse of government power are an indispensable part of modern society. Therefore, this book not only challenges many contemporary constitutional doctrines, including freedom of speech, freedom of the press, due process, and the theory of government action, but also challenges core principles of both classic and modern liberalism. —Frederick Schauer, Professor at the Harvard Kennedy School
Sunstein clarifies many of today's debates on issues such as freedom of speech, reproductive freedom, government subsidies for art and education, while offering profound insights that shift constitutional disputes from a focus on the courts to the stage of democratic participation. In fact, any serious constitutional scholar, as well as any serious citizen, should read this work. —Martha Minow, Professor of Law at Harvard University
The U.S. Constitution stands at a crossroads. Cass Sunstein clearly documents our current predicament and points us toward a new path in constitutional interpretation. Sunstein argues that, under current interpretations, the U.S. Constitution is partial. First, it is biased. The current constitution treats the status quo as neutral and just, viewing any deviation from it as factional bias. But Sunstein points out that when the status quo is neither neutral nor just, such reasoning leads to injustice. On another level, the constitution is also partial: its meaning can only be confirmed through the decisions of the Supreme Court. As Sunstein demonstrates, this is not always the case, nor was it the intention of the Founding Fathers. Instead, the constitution often serves as a catalyst for public deliberation on its general provisions and aspirations—and Sunstein powerfully argues for a broader understanding of this role. Based on this analysis, Sunstein offers his own solutions to some of the most contentious issues debated today, including correcting discriminatory actions, gender discrimination, obscene literature, hate speech, and government funding for religious schools and the arts. In a striking argument, he contends that the Equal Protection Clause of the Fourteenth Amendment, not the right to privacy, protects women's choice to have an abortion. Sunstein links these debates and others to the constitutional commitment to public deliberation between political opponents. In this way, he rethinks many of our most basic constitutional rights, such as freedom of speech and equality under the law. He argues that public discussions of constitutional meaning should be free from the constraints of the neutral principle of the status quo. He views the U.S. constitutional process as an operation of deliberative democracy, a historically grounded but entirely novel understanding.