A Constitution of Many Minds: Why the Founding Document Doesn't Mean What It Meant Before Review

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A Constitution of Many Minds: Why the Founding Document Doesn't Mean What It Meant Before ReviewCass Sunstein publishes new material almost hourly, and I am not always impressed with his output. When he's good (Nudge), he's edgey, supremely confident, and worth a good deal of head-scratching. When he's bad, he can be a partisan suck-up (Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America). Most of the time, he serves up brilliant ideas, but half-baked. (Infotopia: How Many Minds Produce Knowledge).
But this is the book that Sunstein's been laying groundwork for with his last four or five. It's worth the wait. He applies the Condorcet Jury Theorem (recently popularized by Surowiecki's The Wisdom of Crowds) to constitutional jurisprudence, and he gets quite a bit of mileage out of it. This is the best "con law and economics" book since Hayek's Law, Legislation and Liberty, Volume 1: Rules and Order. And it's the single most original argument for creative progress in constitutional law in the last 50 years.
If there is a weakness, it's that he has gazed too long into the abyss of cognitive psychology, and come back with the power to mislead. Sunstein obsessively "frames" the debate with the heavy use of straw men. He invents, considers, and rejects three alternative modes of constitutional thinking he dubs "traditionalism," "populism," and "cosmopolitanism." This clever act of creative pigeonholing permits him to characterize the Scalia originalists as "populist radicals," even as he positions himself to the right of Anthony Kennedy (a latte-sipping, foreign-law-citing "cosmopolitan").
I find these faux-contrarian positions wildly, laughably implausible. I can't believe Cass has lost a moment's sleep worrying about America's constitutional sovereignty. But he seems to be suffering "loss aversion." He has chosen to ride the high horse of judicial minimalism until it dies, and then flog it some more. I think he needs new talking points, but the jury will decide...A Constitution of Many Minds: Why the Founding Document Doesn't Mean What It Meant Before Overview

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