Episode 54: Cass Sunstein
How to Interpret the Constitution
Like George Santos’s tenure in Washington and Tim Scott’s rousing presidential campaign, all good things must come to an end, and so we wave goodbye to season seven of Digging a Hole. Our last guest of this season needs no introduction: according to our team of in-house scientists, if you stacked a penny for each citation he’s received, the tower of pennies would reach almost 1,000 feet high (which, frankly, is not as tall as our scientists expected but is taller than any other scholar’s penny tower). That’s right – our guest today is an author of a best-selling book about Star Wars, the former Administrator of the Office of Information and Regulatory Affairs, and current Robert Walmsley University Professor at Harvard Law School: Cass Sunstein, here to talk about his new book, How to Interpret the Constitution.
We begin by laying out the thesis of the book: that we must have a theory of interpreting the Constitution that comes from outside the Constitution, and that we should choose the interpretive theory that makes our nation the best off. That simple? Sam and David don’t think so, and we discuss what it means to make our nation better off, why we need to choose an interpretive theory in the first place, and how we might revise the thesis on a more institutional view. Next, we look at judicial politics and restraint through the specter that haunts our podcast, James Bradley Thayer. And finally, we get to the bottom of Sunstein’s predictive judgments about the future of constitutional interpretation and American democracy.
See you next year.
This podcast is generously supported by Themis Bar Review.
Referenced Readings
“The Forum of Principle” by Ronald Dworkin
“Efficiency vs. Welfare in Benefit-Cost Analysis: The Case of Government Funding” by Zachary Liscow and Cass Sunstein
What are Sam & David reading?
Sam is reading Ocean Vuong’s On Earth We’re Briefly Gorgeous.
David is reading Lily Geismer’s Don’t Blame Us: Suburban Liberals and the Transformation of the Democratic Party, a total banger.
Episode Transcript
[00:00:00] David: This podcast is generously supported by Themis Bar Review. For more information about Themis, check out themisbar.com. Thank you very much, and now back to the show.
[00:00:35] David: All right, all right, all right. Welcome to Digging a Hole: The Legal Theory Podcast. On this podcast, my colleague, Sam Moyn, and I, David Shleicher, talk about legal theory and whatever else is on our minds. What's going on, Sam?
[00:00:49] Sam: Not much. Just, you know, enjoy talking to my former colleague Cass Sunstein.
[00:00:56] David: Oh, great guest with Cass Sunstein talking about his new book. It's really exciting. It's not only that-- wait a minute, hold on-- doot doot-- is that Thayer's music I hear? For our Thayer fans, we've got a lot of Thayerian content. We've got Cass Sunstein unleashed on other constitutional theorists. This, this one, this is a hot, hot, hot podcast.
[00:01:19] Sam: It is. I just want to say for the zero people who don't know who Cass is, that he's the Robert Walmsley University Professor at Harvard and the most cited law professor for how long? Decades at this point.
[00:01:34] David: And what's the book? Just so we're--
[00:01:35] Sam: It's called How to Interpret the Constitution.
[00:01:38] David: Are people interested in how to interpret the Constitution? I'm not sure. Is that a thing people are interested in?
[00:01:42] Sam: Sadly, they still are. And, you know, it's been an obsession for decades. And we, one thing that we kind of press him on is whether that obsession ought to end in favor of a more institutional take on the Supreme Court.
[00:02:00] David: My personal take is that they should just stop talking about it and start talking about land use. But, you know, you know we all have our crosses to bear. So it's a really fun conversation, everyone. You, I think you will really enjoy it. So let's, let's get to it.
[00:02:26] Sam: All right. Well, our guest today is the great Cass Sunstein, and he's agreed to talk to us about his new book called How to Interpret the Constitution, which came out a couple of months ago with Princeton University Press. So, Cass, thank you so much for joining us.
[00:02:41] Cass Sunstein: Thank you, Sam. It's great to be here.
[00:02:44] Sam: Okay. So as I would reconstruct it, there is a kind of dual thesis to the book. The first is that we must have a theory of interpreting the Constitution that is not in the Constitution itself. And the second is that we should choose the theory of interpreting the Constitution that makes everyone better off. Is that about right?
[00:03:09] Cass Sunstein: That's close. To make everyone better off would be very challenging. But to make our nation better off, maybe that's the way to do it.
[00:03:18] Sam: Okay. So, you know, you actually say stand down in the book to someone who might respond to especially the second part of the thesis, that well, what makes the nation better off is the problem. People disagree about that very fact. And, you know, if you mean maximize the national welfare, well, people disagree about what that entails. So I guess I want to then press you on how that could be a criterion of theory choice in light of the obvious fact of disagreement about what makes anyone better off or worse off.
[00:04:08] Cass Sunstein: Okay, great. So if you have someone who says I'm an originalist, I think that, you know, we follow the original public meaning, or someone says, I'm a Thayerian and Thayerianism is an incomplete theory, but let's just bracket that, we should uphold things if we possibly can. Or someone says, I'm a Dworkin-type, I think we should cast constitutional provisions in the best moral light. That's what we should do. How do we choose among those three and alternatives? Because the Constitution doesn't say be an originalist, be a moral reader, be a Thayerian. We have to look to some sort of account which the Constitution doesn't supply. And when I say stand down, I mean that notwithstanding pluralism, just the fact of pluralism, your point, and disagreement about what makes a social order good rather than bad, there's no other way to go. There's no other place to go to figure out what your theory is. So it might be we have some pretty long discussions about what leads to the best approach. So we might have someone who thinks, I think the best approach is one that leads to the validity of school segregation or the legitimacy of sex discrimination and the theory of interpretation that gets me there is what I'm going to be drawn to. And others might say, I disagree with that intensely. And that's, that's a fair debate, and the thesis of the book is there's no other way to go but for those people to talk it through. They might say in the end, you know, the fact of our long debate that it doesn't get reconciled leads us to something else, and it will yield on maybe particular results so long as the Court defers, what, they might end up being Thayerians? Or I'll take Brown v. Board of Education if that's the price of getting Heller. It might go there. And that's the only thing we can talk about. You might think that this is a little like William James on truth. It's not as high-falutin, but it's a kind of old-style pragmatic effort to see how we choose a theory of constitutional interpretation.
[00:06:46] Sam: All right, that's helpful. I just want to make sure that it's kind of necessary to choose, because it seems as if that answer only works insofar as there's no alternative to choosing amongst interpretive theories. Because it seems like what all of these theories share is that they purport to offer some kind of determinate, or relatively determinate answer, about what the Constitution requires that's not just kind of a political answer that, say, an elected official would choose on whatever grounds. But it seems like if the debate is, you know, kind of the meta-debate about theory choices actually making the country better off, then that's a political question. And so we could think we should just kind of refuse the kind of theoretical contention about how to interpret the Constitution and just let majorities rule or politicians rule. And so why is that not, why not take that exit?
[00:08:04] Cass Sunstein: Okay, that's great. So the claim that we need a theory of interpretation is you have words like the freedom of speech and executive power, and it's necessary to have an account of how to understand those words. So you could think, I don't want an account. I just want to interpret that in a way that human beings understand language. But that will lead you pretty directly toward a theory of interpretation, even if you don't specify it. It might lead you to something originalist if that's what you think is how communication is best understood, or it might lead you to something involving democracy if that's what you think in this context the appropriate understanding of terms like the freedom of speech and the executive power are. And then you're in the domain of theory choice even if you hate the idea of theory choice, you're kind of, you're doing it. Now if you think as a judge, I'm, know that there's no theory of interpretation so I want to interpret every provision in a way that gets me the best political results. And I'll be originalist, let's say, here, and a moral reader there, there's going to be some chaos in the system. And even for you and your best friends, there's going to be chaos. So if it's political in the sense that the judge is making political choices, the ad hoc-ery is at least a difficulty. If you think that for at least many terms like the freedom of speech, or equal protection of the laws, or privileges or immunities, you want the political process to be resolving the question, that's honorable. It could be right. A question is what kind of constitutional order does it produce? And if it produces Nazi constitutionalism, or, with some probability that's not trivial, inclines us toward something like that, that would be a really bad problem. If it inclines us toward something that is, let's say, the highest form of democracy, and let's just use that as a placeholder, then that would be the right approach.
[00:10:31] Sam: So I appreciate that last concession because I would want to resist the idea that we're stuck between judicial supremacy and Nazism because-- and really press the the possibility that we should subordinate the problem of choosing an interpretive theory to the problem of institutional choice, which you care about so much in so many contexts, like who should resolve disagreement in general and about theory choice. And especially to the extent, in a sense that there's no right answer, certainly eternally, at the level of theory choice, which you seem to, you know, accept, then this institutional question kind of looms very large.
[00:11:24] Cass Sunstein: I completely agree. So the example of Nazism was not to suggest that if you didn't have judicial whatever, you would have Nazism. It was to suggest that if you ended up with Nazism with an approach that had a trivial role for courts, that would be a problem for the view. But that's a big if.
[00:11:46] Sam: Yeah.
[00:11:46] Cass Sunstein: [crosstalk] view in the United States, that would be unlikely in the extreme. I think I believe that things look more challenging now than one might have thought 20 years ago. Still, Nazism: far, far, a long way off. So agreed. The book is, so I'll tell you my publishers wanted the book to be, and publishers I mean presses to whom I spoke before I was lucky enough to have an agreement with Princeton Press, they wanted it to be saying kind of my way or the highway. And I got decreasingly interested in the book and in my way. Partly because, you know, I do have a preferred approach, but I don't feel that strongly about it. And second, I don't see why anyone should be particularly interested in it. But even more fundamentally, because the, what strikes me as intriguing is how you pick a theory of interpretation, not which theory you pick. So if you end, so if you end up thinking, I believe in a very restrained judicial role, I want a more democratic space, that is, I think, properly defended on the grounds that it leads to a superior constitutional order. Which it might, but it might not. And if we agree that that's, that's the question, then I think we're on promising Jamesian territory.
[00:13:20] David: So I want to press a little bit again on why you don't rely more on pluralism. So as a thoroughgoing Sunsteinian here, I would have assumed the argument would go along the lines of: people disagree. They disagree at the level of theory. They disagree about everything they-- in order for them to decide anything, they have to come to, often, I mean, to choose a term, incompletely theorized agreements about it, and if they want to convince people of those agreements, they have to convince them that they're good. Right? And that they can't, you can't assume that you're the person with whom you're making a deal agrees with you all the way down or for reasons. And so it seems to me that your consequentialism is driven, or the argument for your consequentialism, as much-- whether or not it's driven internally, it's definitely driven by politics. And politics, I mean politics internal to the Court, let's say the effort-- or whoever the constitutional decider here is. So like why not push pluralism more? It read-- the book is very individually how you decide your constitutional theory. And there's value in that and I think it's an interesting question. But like how the Court, how you should make arguments to people internal to a decision-making body, it seems your theory is much more, much stronger at the very least.
[00:14:31] Cass Sunstein: That's great, thank you. So I do like the idea of judicial minimalism. I think I still like it; I used to like it and I'm not sure I don't like it. And minimalism is when you say it's incompletely theorized agreements where judges would, confronted with a free speech case, let's say not adopt a theory of interpretation, necessarily. They could issue a ruling which is agnostic on the right theory of interpretation or which can attract support from people over diverse theories and interpretation. I think that's how Justice, Chief Justice Roberts typically works. His approaches are agreeable often to originalists and also to people who think originalism is not very good. So I like that at the institutional level. The goal of the book is to think for you, that is, each of us, as a, you know, something. As an interested person in constitutional meaning, should we applaud when the Court takes one approach or when the president takes one approach or despair? And the question is, how do we figure that out? And we could think, even in our own heads interpersonally, that, I don't know, I know originalism sounds pretty good to me, but I'm not sure. So that for a particular problem involving, let's say, guns, you'll go one way or the other agnostic on what's the right theory.
[00:16:13] David: Yeah. So I guess the follow up there is that that sounds like you're effectively negotiating with yourself, right? You have conflicting concerns internal to your own head and you're negotiating. And so, but as a, when we started thinking about the existence of other human beings in deciding things, the theory becomes much stronger because, again, you have to sell. Like if you want to convince someone of your argument you can't assume they agree with you, you know, nuts to bolts or whatever. And so it's a, it seems to me like that you could have supplemented it. I mean, I'm sure they'll be in the next book or was it the last book or four ago, so we'll get there. But the idea here is that the argument of the book is like, to me, where it reads individually reads as a kind of negotiation between multiple selves internal to our heads as much as it is about anything else. So, see what you think.
[00:17:00] Cass Sunstein: I hear you. I can say that the, an inspiration for the book is the ascendancy of originalism, and a target of the book is the view that originalism is compulsory. And at times Justice Scalia wrote like that. At times Randy Barnett writes like that, and at times Larry Solum, whom I admire endlessly, writes like that. I think at his best moment Solum doesn't, and he has lots of best moments, but at times he can be read as saying that communication entails originalism. I don't think that's his view. Originalism, both in the culture and on the Court, has a magnetic pole to those who don't acknowledge that that's a, an optional choice that has to be defended, I say, in terms of what kind of constitutional order it brings about. And it does. And my own view is originalism would lead to a constitutional order that wouldn't be fantastic on imaginable assumptions. It would be good enough compared to the alternatives. But I use the word imaginable, meaning I don't really believe they're true, but they could be true if the history goes a certain way. But that's it. And it's intriguing, I say, that originalists urge frequently that Brown v. Board is right and that robust whatever follows from originalism. They find that really important. And even when they come up with results that they themselves, or they know their readers will love, they're at pains to say the constitutional order that originalism produces is really good and better than, better than yours. And so they are playing the reflective equilibrium game. Good for that. That's the only game in town.
[00:19:17] Sam: So it's totally fair to the book that it is oriented often to originalists and kind of showing why that's not mandated by the Constitution and doesn't have anything like an exclusive claim to interpretive hegemony of the kind it enjoys now in some circles including, you know, on the Supreme Court itself. But neither of us are going to defend originalism and in fact, I'm obviously-- I'm going to kind of push, you know, something rather different. So I want to ask you now about your engagement with people you mention, including some of your own colleagues, Niko Bowie and Daphna Renan, who have said that the Warren Court was anomalous. You know, the Warren Court having, you know, provided a stimulus for a lot of theory building among liberals now of various sorts. So am I wrong to kind of read you as saying that there's a certain element of John Hart Ely's approach that you adopt yourself? The idea is you say that whatever theory might make the nation better off kind of in the aggregate or overall, we still need a theory that protects some set of minorities and promotes democracy in some sense, even if those, you know, whatever theory does that work makes people in the aggregate or on balance worse off. And so I think that's, you know, a familiar view at this point. I want to ask about your take on the empirical record, because it just seems at this late date that Ely's theory is one that in a sense is unavailable to us in practice. Like we don't have the agents to execute it. And so it's undesirable because it's infeasible. And if that's true, once again, I'm back to my conclusion that we may want to rely on the political branches for constitutionalism if we have it, that's to say, extremely flawed and even potentially risky, democratic and majoritarian institutions precisely to bring democracy about, because we don't have any reason to believe at this late date that judges will do it.
[00:22:02] Cass Sunstein: That's great. So what, what seems to me fundamental is to identify the terrain along which we're discussing this question and then we can discuss the question. So let's start about the terrain. If the claim is that some sort of highly majoritarian approach that doesn't count on Elyism as a safeguard for democratic preconditions is our best long run bet to have a constitutional order, we should, we would celebrate. That's completely consistent with the book, and then we're on the right, we're discussing it on the right ground. Just as if the originalist claim is we end up with originalism having a constitutional order of great beauty, whatever your priors are, and you'll be really glad we got there, that's admissible. So, agreed. Then the question whether that in the end is true, rather than arguing along the territory that's right. I don't think it's true, but I'm not that clear in my head about my conviction. And I don't feel very-- as well as unclear about I'm just not that excited about it. But since I believe it, I'll say what I think. Which is that, I'm speaking from Washington, D.C. right now. As it happens, there is a Speaker of the House who believes that the election was stolen. The chance that our democracy is in grave trouble in the next decade is not zero. The likelihood that the Supreme Court, for all its non-Elyism would be promoting the undermining of, let's say, constitutional order in the United States is low. The likelihood that the Supreme Court would be an incremental plus in the face of bad things is high, I say, with the word incremental emphasized. Not they're going to save us, but an incremental plus, is high. And the claim there, it's a hunch. And the hunch is that the justices believe in the rule of law, that their enthusiasm, their own enthusiasm for legitimating outlandish constitutional objections to the 2020 election was zero. The likelihood that they would intervene in the face of extreme illegality, let's say, is not zero. And so, I say, to have something, Marbury plus something, maybe a faint Elyism there, is realistic enough to want that rather than an approach which would say the Court upholds everything or the Court upholds everything that isn't patently unconstitutional under any theory of interpretation. So it's a bet, and is it the right bet? I think so. Predictions are hard, especially about the future.
[00:25:54] Sam: So, okay. Okay, I love that. And I'm actually completely in agreement because it's basically an empirical conjecture. And I guess I'm just not as sure of the conjecture as you are, even, you know, with the current speaker just on the grounds that, well, the justices since the day Ely's book was published, haven't even, let's say, done the more minor work of executing his program, let alone saved our democracy from a fascist threat, which, kind of according to the hypothesis, is, you know, controlling the political branches of government through majority support or whatever is involved, you know, under this the very constitution we're talking about interpreting and getting power in the political branches, you know, sometimes on a minoritarian basis in the presidency and Senate. So that would be, you know, the scenario you're depicting obviously is a lot more credible than it once was. But it could involve a kind of risk assessment that both, you know, magnifies, you know, rather than optimizing, magnifies risks and then presupposes, implausibly, that some agents that would save us from those risks.
[00:27:30] Cass Sunstein: I agree. I agree entirely that this is, this is the right discussion to have. And I'm conscious that I predicted in the early stages of Covid-19 that this wasn't going to be a very big deal. And that was a really bad prediction. And so my prediction here might be, it's hard to imagine a prediction as bad as that one, but it might be in the ballpark of the bad prediction. The thought is that in domains that involve e.g., freedom of speech and basic democratic whatever--
[00:28:06] Sam: Right.
[00:28:06] Cass Sunstein: the rule of law is a friend to constitutional order. And even over the long term, the justices are basically there. But it's not, it's not clear that that's true. So if the speculative empirical conjecture goes the other way, then we'd want a theory of interpretation that's more like Thayer's. I guess you're saying Thayer's, I don't know what Thayer's politics were. But Thayer thought that the like, I don't know if it was about mistakes on the part of the Court or it was about democracy with a small-d, might have been the latter. And, you know Thayer's disappeared a bit from practice, which is regrettable. And you've written about this, and it may be time for a rebirth. That's hard to get to; it might be as hard as Eyism to get to. Maybe every bit as hard because you need an arms control agreement and that's difficult, especially if the justices who don't like Thayer have clarity that their theory of interpretation is the right one and that they know what to do given their theory of interpretation. A point for you is that it's really worrisome. And it's a genial book in the sense that it was written in a, with a spirit of admiration for the best version of various proponents. I was in a good mood when I wrote it. But if I hadn't been in that kind of mood, I would have emphasized more than I did, I think it's in the first few pages, that originalists tend to think that the original public meaning of the Constitution lines up beautifully with the views of the right wing of the Republican Party. And that would be a miracle if that just turned out to be, time and again, you look through the history and you found affirmative action's no, no good. Individual right to have guns is authorized, commercial speech is protected, campaign finance is illicit, etc.
[00:30:37] David: So I've got a bunch of questions but I want to quickly say, I think you underrate how hard it is to get to Thayerianism because it's not even incentive compatible with judges who might want to achieve, once they're in office, might want to achieve things. So. I want to ask some questions about the theoretical pose of the book and its relationship to American political institutions. Because one of the-- the theory of how to do interpretation is, it seems to me, not specific to American institutions. It's not about how the U.S. Supreme Court should work, but it's about how, at least how judges should behave broadly speaking. This is in contrast with some of your, the people you are responding to. So like originalism as our law, we just had Will Baude, it's a theory of American, really federal American constitutional interpretation and it's not necessarily a theory of how states should do, it's not theory of how the WTO appellate body. Would you have different advice at the level, the meta-theory, for non-American, non-Supreme Court Justices, or is it the exact same thing? Is this just a theory of judging rather than a theory of the U.S. Constitution?
[00:31:39] Cass Sunstein: I'm going to back into it and use a word I think I've never used in my life, and it's a little bit of a bad word, but it's not so bad that children have to stop listening. Baude's argument that originalism is our law is ballsy. I've never used that word. And I don't mean that as a compliment, though I really admire Baude. I mean, my admiration for him on a scale of 1 to 10 is a lot higher than ten. But it's a preposterous argument, which is, that's not a very nice thing to say about someone you admire, but the idea that originalism is our law, when Oliver Wendell Holmes was not an originalist, Felix Frankfurter wasn't an originalist, Robert Jackson wasn't an originalist, Ruth Bader Ginsburg wasn't an originalist, the chief justice of the United States is not an originalist, Warren Burger was not an originalist, William Rehnquist was not really an originalist and Henry Friendly was not an originalist, Richard Posner wasn't an originalist, Learned Hand was not an originalist. To isolate judges who were originalists since the founding period? That's difficult. Was Chief Justice Marshall originalist? I don't think so. That's not, it's not nuts to say he was, but it's hard to say he was. Is McCulloch v. Maryland an originalist decision? Well, you have to do some, a lot of work to show that it is. Is Marbury? Not really, it's much more structural. So the idea that originalism is our law, my gosh. How can that have gotten such traction in view of its palpable inconsistency with practice? I guess one could say, and Stephen Sachs I love, he's my colleague, I think he's phenomenal. His work is so great and I've discussed this with him. It is true if you can show that a ruling is palpably inconsistent with the original understanding, there's some explaining to do. But there's a recent note in the Harvard Law Review that looks pretty good that suggests on originalist grounds, blasphemy is unprotected by the First Amendment. Do we expect any judge in the next ten years to say, well, maybe blasphemy can be forbidden by the First Amendment? That would be very surprising. And if we see it, it's not because of the history. It's because something has happened in the culture with respect to blasphemy. Okay so that's my polemical windup. I was struck a few years ago by European graduate students who said that, in our system it's teleological interpretation. That's what we do. And they were super smart and they said it in a way that was meant as a challenge. The implicit question, why don't you do that? Why don't you do a teleological interpretation? I didn't really know what that meant. I now kind of have a clue. So it's kind of purposive. It's Dworkinian without the apparatus. And why would you be a teleological interpreter? It would be exactly the same kind of question that the book urges is resolved by what makes the constitutional order better. If you were in Israel, let's say, not like Justice Barak, but more like Thayerian, maybe that would be good. And to say teleology kind of falls out of interpretation is not true. So I say this is [cough]. That was a cough of caution. Cautious was saying, please cough now. This is an imperialistic book. The claim is meant to be universal.
[00:35:39] David: So then that leads me to the next question, which is, what is it that is true about American institutions that gives you your specific answer? And you kind of answer this a little bit in the context of talking about democratic risk. But like you might wonder a little bit at any given time our own interpretive theory should, by consequentialist grounds, change based on, say, the nature of the economy at the time, or alternately, the kind of like level of polarization in Congress. So like how we feel about deferring to agencies may depend on our likelihood of beliefs about Congress changing over time. Is it, is there, is it one party rule. And you could imagine any number of sociological facts on the ground about politics, about other institutions, that would change what you, what we'd think in either the narrow, if you're doing a very short-run consequentialism, or if the longer run, you're expectations about these things. So what is it about American institutions that drives you to your particular view? And I'm interested in this not just, as you noted, because it's a weakly held interpretive view but how should we think about the relationship between other institutions, non-judicial institutions-- politics and judicial interpretation and choice of theory?
[00:36:55] Cass Sunstein: Okay, that's great. It's related to Sam's question, and I'm in agreement with Sam that ought implies can. So the embrace of Ely's democracy reinforcing approach would be foolhardy if the likelihood that judges would do it is zero. Bracketing that, in our country we have institutions which have significant democratic deficits, that their accessibility to people who are really struggling is not equivalent to their accessibility to people who aren't. If you go on regulations.gov, my favorite website, and look at who's commenting on the regulations, and the comments really matter, there's a skew. And the skew is because people with resources and organization can do things on regulations.gov. That's, this hasn't been studied. That regulations.gov is kind of an exhibit in democratic deficits in the United States. So for us, an imperfect democracy, to have institutions that are providing safeguards when things don't go well, that would be good if the judges would do it. If they won't, then we don't want the judges to do the other thing that they might do to maybe make it worse. In a country, let's say, with terrible, really terrible democratic processes and admirable and effective judges, then that would be a very good thing for them, a very good project for them. So we're stipulating a willingness and ability on the part of judges to make up for democratic deficits, and very significant democratic deficits. So that would be a nation well-suited to Elyism. If you had a nation where the democratic process was fantastic, you know, take your pick. What? Any one would be contentious. Maybe we say Denmark. I've been to Denmark a few times, so I'm real expert on Denmark.
[00:39:21] David: Everyone says getting to Denmark is the, is the goal of modern democracies. So, yes, go ahead.
[00:39:27] Cass Sunstein: Denmark seems great. So let's just suppose it's a well-functioning democracy. It has political, it lives political equality. Let's not insist on that point. Let's just stipulated for purposes of discussion. You don't need an aggressive judiciary particularly, and it might make things worse. They might have their own biased views of one sort or another, and then Thayerism would be perfect for them. And then you could imagine a place where Dworkin's view would be happily ensconced, and we could say the conditions that would lead to that. I think the, I think of two of my heroes, Jeremy Waldron and Ronald Dworkin, as having the same problem, which is their theory of interpretation purports to be timeless when it's contingent on a set of institutional assumptions that Dworkin seems to have thought were enduring. You know, “The Forum of Principle,” his, I think, very moving article, claims something about the institutional setting of the judiciary and the likelihood they're going to think pretty well about philosophical issues. That looks like a rotary phone now. And Waldron, you know, has a starry-eyed view in some of his writing, I think, about democratic processes.
[00:40:53] David: Completely agree. And I have one last question in this line about the imperialism of the book. And it's, is it a theory of law at all? So you argue that judges should use fixed points in arguments and conceptual arguments and then kind of reason their way through consequentialism to outcomes, both, with both specific instances and theories. And if I were imagining in your other part of your life, an economist, a sociologist, or whatever were advising the president, a political adviser, you got your hack, you've got your wonk, you've got your whatever. And you ask them to advise the president, how should I make a decision about this? I imagine we'd go roughly the same way. You'd make argument from specific instances. You'd make arguments about theory. You'd make arguments about the importance of consistency across domain. What is it about, that your approach to constitutional law here is a theory of law rather than a theory of public decision-making? Or maybe even decision-making, broadly speaking?
[00:41:48] Cass Sunstein: Great. So I would, with respect to advising the president, I would be focused on social welfare with distributional weights. So that's jargon and people don't march under banners to use those words. But suppose the question is what to do about clean air if the consequence of your particulate matter is really bad. And for particulate matter, we don't want nudges, we want aggressive regulation because it makes people sick and die. So for particulate matter, we want to think, what are the consequences of aggressive regulation? They're highly likely to be good. Talking about tens of thousands of people who would live who otherwise might not. If the law allows, happens not to, I wish it would, allow consideration of cost, then we take that into account also because the human consequences of high costs are borne particularly by people who [inaudible] money because a dollar for them is more awful than a dollar for Jeff Bezos in cost. And then I'd want to put distributional weights so, both because a poor person who gets a certain amount of money is more benefited than a non-poor person who gets the same amount of money, and because fair distribution is good in itself. I like the idea of prioritarianism, which puts priority on people at the very bottom of the ladder. Derek Parfit kind of developed a little bit. Matt Adler much more elaborated, has elaborated, continues to elaborated prioritarianism. But you're right, this is all in the same general ballpark of the blockheaded welfarism that I follow.
[00:43:50] David: I will let Sam-- but I just want to quickly shout out your recent piece with our colleague Zach Liscow, which is about distributional weights in, which it's an unbelievably powerful piece and really got. Sam?
[00:44:01] Sam: So I resisted earlier, but I want to ask about Thayer and your, you've alluded to your view in the book about Thayer but I'll just quote a sentence to know whether there is clear error. “We must have a theory of what the Constitution means.” And that's like, what is, you alluded to when you said it. Thayerism is incomplete and in a sense begs the question at issue that you, you know, try to solve in the book. But I just want to make sure that the claim is true because one could imagine a Thayerism, if you will, that that again starts with the fact of theoretical agreement and says, well, maybe the clarity of an error consists in convergence from diverse theoretical perspectives that there is an error no matter what, you know, interpretive priors one has. We don't need to settle that dispute to identify a clear error. And then it turns out, if that's correct, that Thayerism isn't incomplete. It doesn't presuppose a theory of what the Constitution means. It might for each judge involved in this convergence. But that's, you know, their problem and they might not have any theory at all. And so it seems then like the claim about the incompleteness of Thayerism is not true. And so I want to, I'll ask for your response on that.
[00:45:45] Cass Sunstein: That's great. So suppose that a constitutional violation is plain under any theory of interpretation. I think that's what you're saying. So someone says that 35 means in some language, 90. The word 35 happens to mean in some language, 90, and we, and that's, so you have to be over 90 to be president. We agree that would be invalid under any theory of interpretation. So I agree--
[00:46:20] David: That may be true but in politics these days. But you know, it might not yet.
[00:46:25] Cass Sunstein: We're getting there. You have to be at least 80 maybe to be president. What I'm thinking is that there are Thayerian originalists. I think, well, maybe there aren't any, which is interesting, but there could be, who think that, given that I'm an originalist, I think that affirmative action is okay because there is a, it's not clear that affirmative action violates the original understanding. Or you could be a moral reader Thayerian who thinks that the violation of the moral reading has to be self-evident, otherwise the legislature gets to do what it wants. So what I'm thinking is that you're right. You could say under any theory of interpretation, there is a violation under Thayer's approach. That's correct. Where I was thinking is to say that it's going to be upheld. Under Thayer's approach, you need to adopt your theory of interpretation to which you pour Thayerism on top.
[00:47:36] Sam: But, but why? I mean, I get for an opinion for the Court, but you know, obviously the Supreme Court, or courts generally that we're talking about, are voting institutions. And you could imagine a seriatim practice where each judge has her own opinion and, or you could imagine something like a supermajority rule on courts that, you know, just take account of the institutional fact that there's voting on courts. And there's just no need for any theoretical convergence to imagine a Thayerian court.
[00:48:15] Cass Sunstein: Okay. I think, I think you're right. I'm not sure. But I think, I tend to think you're right. But let me explain the dimension along which the sentence you quote isn't wrong. That to say that there's no clear violation of the Constitution, you personally need a constitutional meaning to make sense of that. And so I'm a Thayerian, let's say I decide. How do I work my Thayerism? Am I a textualist? Am I an Ely, you could be an Ely Thayerian? But I think you're also right that you could imagine a judicial decision that would be Thayerian that would be agnostic on the foundation on which Thayerism is overlaid. That sounds right. It's certainly right for finding constitutional violations. Say under any theory of constitutional interpretation, this is clearly an error. To say it's not clearly an error, that's what I'm struggling a little with. To say that it's within the domain of the reasonable. You could have a moral reader saying, for example, that restrictions on abortion aren't clearly a moral violation because of the interest in protecting unborn life. And you could have the Thayerian originalist saying what the Thayerian originalist would say, and you could have the Ely Thayerian saying Roe v. Wade is wrong. So I'm convinced you're right. The Ely, Dworkin, and Scalia could agree to overrule Roe. None of them happens to be Thayerians, which is concerning, I think, and interesting. But if they were, they could agree. It would be interesting to see whether you see one opinion or three, but they could come out the same way. That's true.
[00:50:17] David: So at one point in the book, in critiquing originalist theoretical arguments about the necessity of originalism, you say, I do agree that judges should be faithful to the text, even if the text were not as good as it is. And it is very good indeed. And somewhere else you wrote, in my view, Madison rocked. I wonder a little bit, how much does your view of the arguments about the book, kind of your specific constitutional interpretation, turn on the fact that the American constitution is very good indeed? Like, I'm not convinced it's very good indeed. Like when we help countries write constitutions, we never use the U.S. Constitution as a model, with the exception of creating apex constitutional courts, which again we've mostly done in recent periods, but countries have adopted. But like no one adopts like a Senate with two senators and no one adopts a, almost no one adopts strong presidential systems of the sort we have. And they include all sorts of other rights that we don't include. And you see this at the state level as well. So like how much turns on the fact that the Constitution is good?
[00:51:21] Cass Sunstein: So if you thought the Constitution was terrible, you wouldn't, I think, be able to adopt a theory of interpretation that made things better because there is some thing an interpretation just is, which is fidelity to the thing that's being interpreted.
[00:51:39] David: What if it was mediocre or mixed? Had some good sides, some bad things. It's like, I don't know, like anything that's really old has some qualities survive for a while. That seems like an attractive quality, but you know, has some obvious errors.
[00:51:53] Cass Sunstein: I think Henry Monaghan wrote once that fidelity to the text is an axiom. It doesn't have to be defended. And I thought that was very powerful and convincing; I now think it's wrong. That fidelity to the text is not an axiom. Or if it is, it's an axiom the same way that some people believe, you know, something, just what they're what they're committed to, but they better defend it. So the idea that fidelity to text is a good thing needs a defense. And it's a lot easier if the thing to which you're being faithful is itself really good. And I believe that. But I, I hear you and I don't disagree with what you say about particular parts. So if we thought the Constitution is kind of fine, then we'd have to ask whether fidelity to it is a bad thing. And a lot depends on our role. If you take an oath, then you know, unless it's very extreme, you better act consistently with your oath. If you haven't taken your oath, an oath, you might think, well, I want a new constitution. And that's fine. That wouldn't be in your role as an interpreter. So the originalists argue-- have you noticed this, both some of our professor friends, like too many, and so many of our fellow citizens argue if we're not originalists, we're amending the Constitution. And this is so ridiculous and accusatory that the fact that it needs an answer is itself a little embarrassing. It's like, well. But it does. It does. Fidelity to the text is mandatory if you are interpreting. So, but if you think the Constitution's terrible, you might think we need a new one. Larry Lessig, my colleague, great friend, thinks we need a new one. I'm not sure he's wrong to say we need a new one. But baby, this is my natural risk aversion, my natural meaning, just inbred, that if we try to get a new one, the gates of hell might be opened and we might end up with something horrifying. And what's wrong with America now, I say, is not fundamentally our Constitution, though there's a discussion to be had about that. I mean the text.
[00:54:30] David: That reminds me of one of my passages in my favorite movies, The Last Days of Disco, where he goes, the Shakespearean admonition to thine own self be true is premised on the idea that thine own self is something good, to which being. Right, it's the same concept. So I appreciate that very much.
[00:54:46] Sam: Well, I wasn't going to engage on this, but I will. It seems to me that there can't be a duty of fidelity. There could be an imaginable situation in which there's, it's necessary to operate within the Constitution but you think it's bad and there's no prospect of changing it anytime soon. And you might have the duty to extricate the country from the Constitution in the name of fidelity, but not out of actual fidelity. And then even to the extent you're right, that there's some kind of duty of fidelity, it's such a weak constraint. And, you know, Paul showed long ago that we can interpret the spirit rather than the letter and find, you know, some way-- I mean, even our eternity clause in Article Four that requires not messing with the Senate. I mean, you-- would you say that the duty of fidelity requires us to avoid interpreting our way out of that provision someday if we have the chance? I mean, surely not.
[00:56:00] Cass Sunstein: I haven't thought enough about that to know. So the eternity clause, I want to think more about thinking can one generation bind forever? Probably not. So, so how exactly to think about this? I need to think about it a little more to give an answer that I would stand by. But I agree with you that if you have a horrifying thing that's in the law, then there might be a moral obligation of civil disobedience. So that's kind of how I'd phrase it if-- and I also agree with you that much of the Constitution has a degree of open-endedness so that you can say in good faith, I understand it this way and that you're being faithful to it. It is true, I'm putting on my bureaucrat hat now, that the obligation to follow the law is often outside of the Constitution, extremely constraining. In a way that makes bureaucrats feel like they're hemmed in. And to say we're not going to follow the law because in this circumstance it's really dumb, like you need a notice and comment process before you issue a regulation. Maybe the take care clause interacts with the obligation to adhere to the APA, but sometimes you kind of need to solve a problem now and you don't fall within any exception to the notice or comment requirement and you're hemmed in. Civil disobedience in that context, that would be. That would be very irregular.
[00:57:51] David: Yeah. I, first I thought your answer about role morality is like right on some level, which is that like the, not to say that you like can't or that you can't find open-endedness, but that like there's something a little bit, we should, you should maybe internally put more doubt on your question when you are, like, if you're going to be like really pushing the bounds because they've been chosen for our responsibility and we exist in roles. But Sam doesn't agree with me. But that's, that's certainly fine.
[00:58:17] Sam: You know, the, you know, the question is what is the constraint of the of the role morality. I mean, Cass's colleague, Ryan Doerfler and I have a forthcoming piece about defiance. And of course, there's, you know, outright defiance of the kind that, you know, Andrew Jackson or George Wallace engages in. But bureaucrats are experts in, let's call it creative compliance and what is involved in, you know, Joe Biden, the president Cass is serving, saying, oh, well, we'll just find another ground to forgive loans than the one the Supreme Court has ruled out and maybe keep going until we succeed. Okay. But I want to-- leave that aside as an editorial comment. I want to ask Cass about a kind of absence. So, you know, you're involved in everything, but I was thinking that I haven't, I don't remember you saying anything in relation to Supreme Court reform politics. And there was. I mean, you know, your president, I voted for him as well, you know, convened a commission. And many of your colleagues, many of our colleagues served on it. And, is-- I mean, it would explain a lot if you thought that, you know, the earlier maxim of ought implied can just makes Supreme Court reform of whatever sort, which would be institutional rather than about the, you know, choosing an interpretive theory, a pipe dream. And then we are in a sense stuck with choosing an interpretive theory. But so is that why or is there some other reason for your silence about Supreme Court reform?
[01:00:08] Cass Sunstein: Well, I've been thinking for a while about theories of interpretation, and I got kind of stirred up by relevant debate. So I thought I had something to say about that. On Court reform, I don't know how to think about it. I think it's like our discussion earlier about judicial retreat. That is, it depends on some predictive judgments. So we can describe imaginable futures where the judgment about Supreme Court reform would kind of follow from the imagined future. So if you thought the Court was going to be a horror show for the next 100 years, then Supreme Court reform would be a really good idea. If you thought the benefits of the Court would be trivial and the horror would be through the roof, then we'd be, we have to identify what the reform would be, but we be for it. So it depends on predictive judgments. And what the reform would be, I don't have clarity on which ones would be best. But we know directionally what we would want if we thought the Court would be a horror show.
[01:01:38] Sam: So that's very helpful. And it explains maybe something that's, you know, in a sense tentative about aspects of the book. When you discuss Thayer, you kind of sound like you're warming to him while still reserving this very important possibility that, you know, the empirics really suggest we need the judges, either for just the ordinary business of protecting minorities or the big business of saving democracy.
[01:02:13] Cass Sunstein: I may have been overinfluenced in my concerned comments about Thayer by reading, at the same time as the book, about the civil rights movement, and I clerked for Thurgood Marshall. That probably had an outsized impact on me. He was, you know, I think he should be anyone's hero. And he relied on the Court to get rid of racial segregation, at least under the Constitution. And Bolling v. Sharp, which I regard as foundational, that's actually extremely hard to defend on originalist grounds and even harder to defend on textualist grounds.
[01:02:56] Sam: Right.
[01:02:57] Cass Sunstein: It's interesting, by the way, that Justice Thomas is at pains to try to defend Bolling v. Sharp on citizenship clause grounds, which, it's like what Charles Black in his great essay on Brown called “one step ahead of the marshal” arguments, where you're running fast, the marshal's chasing you. And that is the kind of argument Justice Thomas is making. And it shows the power of the search for reflective equilibrium. If his theory of interpretation leads to the conclusion that the federal government can discriminate freely on the basis of race and sex, I think he knows that's a real problem for his theory, and he's right.
[01:03:46] David: What's also right, though, is that this book is a real fun read and you all should check it out. So I just want to say thank you to Cass, for coming on the podcast. It was a real, a real clambake. We really appreciated it.
[01:03:58] Sam: Thank you so much.
[01:03:59] Cass Sunstein: Thank you both. Really enjoyed it.