The Partial Constitution

By Cass R. Sunstein

Book Overview

American constitutional law is at a crossroads. In a major new interpretation of the Constitution, Cass Sunstein offers a clear account of our present dilemmas and shows where we might go from here.

As it is currently interpreted, the Constitution is partial, Sunstein asserts. It is, first of all, biased. Contemporary constitutional law treats the status quo as neutral and just, and any departure as necessarily partisan. But when the status quo is neither neutral nor just, Sunstein argues, reasoning of this sort produces injustice. The Constitution is also partial in another sense: its meaning has come to be identified solely with the decisions of the Supreme Court. This was not always the case, as Sunstein demonstrates; nor was it the intention of the country's founders. Instead, the Constitution often served as a catalyst for public deliberation about its general terms and aspirations--and Sunstein makes a strong case for reviving this broader understanding of the Constitution's role.

In light of this analysis, Sunstein proposes solutions to some of the most hotly disputed issues of our time, including affirmative action, sex discrimination, pornography, "hate speech," and government funding of religious schools and the arts. In an especially striking argument, he claims that theequal protection clause of the Fourteenth Amendment--not the right to privacy--protects a woman's right to choose abortion. Sunstein connects these and other debates to the Constitution's historic commitment to public deliberation among political equalsand in doing so, he reconceives many of our most basic constitutional rights, such as free speech and equality under law. He urges that public deliberation about the meaning of the Constitution in turn be freed from a principle of neutrality based on the status quo. His work points to a historically sound but fundamentally new understanding of the American constitutional process as an exercise in deliberative democracy.

• Format: Paperback
• Language: English
• ISBN: 067465479X
• ISBN13: 9780674654792
• Release Date: August 1998
• Publisher: Harvard University Press
• Length: 423 Pages
• Weight: 1.10 lbs.
• Dimensions: 1.1" x 6.1" x 9.2"

Customer Reviews

A powerful contribution do constitucional doctrine

When I was in my first years teaching constitutional law and writing a book on church and state in Portugal this book was perhaps the most important I read. The insights of Cass Sunstein helped to build a more persuasive case for religions freedom and equality in Portugal. Cass Sunstein addresses the constitutional question of determining the right baselines in those cases in which a Constitution confronts historically consolidated situations of inequality. In this cases, one must remember that the historical process is not necessarily a legitimate one. For instance (and this is where Sunstein'work was important to me), in Portugal the Catholic Church became the dominant religion, not by means of gentle persuasion in a free marketplace of ideas, but through coercion, persecution and discrimination. This means that the search for the right baseline for treating equally the different religious groups in contemporary Portugal cannot start with the acritical acceptance of the current situation of fact. If a Constitution accepts reality as it is, without any concern for how this reality came to be, this constitution will turn out to be a partial constitution. Much more could be said about it, but my point is that Sunstein's argument, developed trough many topics that have nothing to do with church and state problems, in fact helped to shape the current debate on church and state relations in Portugal, by focusing on the ilegitimate ways in which the dominant religion became so dominant and, by that, by allocating more theoretic and normative resources to the protection of religious minorities. After reading this book I've always tried to read everything I can from Sunstein. He is a great professor even when ocasionally I don't agree with him.