Cass R. Sunstein is a distinguished professor of Law at Harvard. For economists he is well known for his book with R. Tahler on "Nudge". Today I would like to reproduce several statements of his 2009 book: A Constitution of Many Minds: Why the Founding Document Doesn't Mean What It Meant Before. Just for those that consider that law should constraint people's expectations:
I mean to identify and explore three approaches to the founding document: traditionalism, populism, and cosmopolitanism.We shall see that in all three contexts, what is at work is a many minds argument–an argument that if many people think something, their view is entitled to consideration and respect.
Traditionalists insist that if members of a society have long accepted a certain practice, courts should be reluctant to disturb that practice. Some traditionalists go further, urging that even po-litical majority should respect longhstanding practices. Populists believe that if most people believe a certain fact or accept a certain value, judges should show a degree of humility—and respect their view in the face of reasonable doubt. Some populists think that if many people be-lieve something, they are probably right, and elected representatives should defer to them too.Cosmopolitans believe that if many nations, or many democratic nations, reject a practice, or accept a practice, the United States Supreme Court should pay respectful attention. Some cos-mopolitanians believe that if most nations, or most democratic nations, do something, other nations should probably fall in line with them.
Of course the three positions are different, and it is possible to accept one while rejecting the other two. But the structure of the central argument is identical in all three contexts. Nothing in the Constitution itself rules out any of the three approaches that I shall be ex-ploring. The Constitution does not set out the instructions for its own interpretation, and many approaches fall within the domain of the permissible. But traditionalism, populism, and cos-mopolitanism all run into serious obstacles. In the end, much of my argument will therefore be negative and critical. I will try to show why each approach has intuitive appeal – but also why each of them faces powerful objections.Today is a day to reflect on such issues. Laws are created after a political process, popular sovereignity is above them. I wanted just to reflect on that in a historic day.
