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In Radicals in Robes, Cass Sunstein posits that there are four primary approaches to constitutional interpretation: perfectionism, majoritarianism, minimalism, and fundamentalism.' The purpose of his eloquent and compelling book is twofold: Sunstein argues for minimalism, an approach that he contends makes most sense for America today; and with even greater force, Sunstein argues against fundamentalism, which he finds "wrong, dangerous, radical, and occasionally hypocritical."' The "Radicals in Robes" who are the targets of Sunstein's book are judges who embrace fundamentalism, which, in his view, embodies "the views of the extreme wing of [the] Republican Party."'

In Securing Constitutional Democracy: The Case of Autonomy, James Fleming, with eloquence and insight, elaborates on Sunstein's approach - an approach that sees the Constitution, properly read, as securing both deliberative autonomy and deliberative democracy. Fleming's is a classic expression of one of the four schools of thought sketched out by Sunstein - perfectionism - and the approach has no better champion.

In this essay, I would like to focus on the two schools of thought that are not championed by either of our authors: majoritarianism and originalism (or fundamentalism, in Sunstein's lexicon). Exploring these approaches, I will highlight judicial role, and, specifically, how early courts approached constitutional interpretation. Early courts deferred to the constitutional judgments of legislatures, except where those judgments produced statutes at odds with preconditions of constitutional governance. Thus, originalism was majoritarianism of a certain type, and that link between the approaches - the fact that the originalist approach has not just the majoritarian imprimatur of the "We the People" who enacted it, but that it also fully accords with an Ely-esque process-perfect theory of representative democracy - makes the case for originalism much stronger. In discussing the overlap between originalism and majoritarianism, I will begin by drawing on Radicals in Robes, because a large part of Sunstein's project is critiquing originalism, while Fleming (in Securing Constitutional Democracy) does not focus on the approach. I will then suggest that if originalism is correctly understood, the approach should become much more appealing to Sunstein and Fleming (even as it continues to differ from their analytic approaches).

Publication Citation

75 Fordham L. Rev. 2989-2995 (2007)