How to interpret the Constitution

Sunstein (law, Harvard Univ.) attempts to provide a satisfactory answer to this question: "How should we interpret the Constitution?" Several lengthy tomes addressing this question were published in the past decade, including Jack Balkin's Living Originalism (CH, Jun'12, 49-5943), Akhil Reed Amar's America's Unwritten Constitution (2012), John O. McGinnis and Michael B. Rappaport's Originalism and the Good Constitution (CH, Jul'14, 51-6443), Richard Epstein's The Classical Liberal Constitution (CH, Sep'14, 52-0524), and Randy E. Barnett's Our Republican Constitution (2016). In this short monograph, Sunstein offers his own response to the above question. His answer: choose a theory that would make the constitutional order better, by which he means one that would promote deliberative democracy and an anti-caste principle--forbidding the creation of second-class citizenship. Armed with these first principles, he proceeds to pick from and pick apart various dimensions of alternative interpretations. His style is conversational and inviting, not aggressive: "No Algorithms Here" (p. 164). Thought-provoking and readable. Summing Up: Recommended. All readership levels. --Peter J. Galie, emeritus, Canisius College

An incisive rethinking of the U.S. Constitution. Sunstein, the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School, begins by pointing out the irrefutable fact that "the Constitution does not contain the instructions for its own interpretation." Thus, "no approach to constitutional interpretation is required or self-justifying." On those grounds, he briskly swats away every jurisprudentially, philosophically, and historically justified interpretive scheme--"anti-originalist" as well as "originalist," of the left as well as the right--that has been advanced since the 19th century. All schools and schemes of interpretation fall before his generous-spirited ax strokes. In their place, he argues, there can be only one acceptable, humane approach to judicial interpretation: the search among jurists for a " 'reflective equilibrum' in which [jurists'] judgments, at multiple levels of generality, are brought into alignment with each other" in order to achieve the most democratically acceptable and fairest outcome achievable at the time. "There is no alternative to the search for reflective equilibrium," writes the author, because "no theory makes sense for every imaginable world." Though disarmingly and intentionally "simple and straightforward," as well as open-hearted, common-sensical, and succinct, Sunstein's text, given its grave and demanding subject, requires readers' attentiveness. Despite the author's fair-mindedness, it's clear that his main targets are the originalist and traditionalist arguments that have recently captured the radical right and are overturning decades of settled constitutional law. Is Sunstein's interpretive scheme strong enough to halt the further advance of originalist and traditionalist thinking on the Supreme Court? Probably not. But it's a brave, muscular, and compelling roadblock now standing in the way of originalist ideologues. This book should be in the hands of every law student, constitutional lawyer, judge, and Supreme Court justice. One of the most significant works about constitutional interpretation in recent years. Copyright (c) Kirkus Reviews, used with permission.