Faculty Bibliography
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One of the most striking developments of the last decade has been the new use of Article II in public law adjudication. Article II is a prominent feature not only of cases involving the creation of federal institutions that are independent of the President, but also of new disputes involving reviewability, scope of review, and standing. Professor Krent and Mr. Shenkman have performed a valuable service in spelling out the argument that Article II, rather than Article III, justifies constitutional limits on legislative grants of standing. Indeed, on several important matters, we are very much in agreement. In this brief space, I will be unable fully to come to terms with their understanding of Article II. I will try, however, to indicate why that understanding seems to be quite adventurous as a matter of constitutional history and structure. In the end, I suggest that their conception of Article II amounts to a form of constitutional revisionism, in the interest of judgments of policy and fact that are plausible but that lack sufficiently clear constitutional roots to be invoked by courts.
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The right to free speech is invoked to protect an astonishing range of activities, a range that seems to expand every day. Newspapers publish the names of rape victims, flags are burned, pornography flourishes, and all of these controversial actions are protected under the constitutional right of free speech. The Supreme Court increasingly decides disputes by invoking the First Amendment. Civil libertarians, former antiwar protesters, and tobacco advertisers join revisionist conservatives in attacking almost all forms of censorship, extending the search to the farthest reaches of commercial and symbolic speech. In short, we are in the midst of a revolution of absolutist interpretations of free expression. The absolutists are misguided, argues Cass Sunstein. Our government now protects speech that causes harm yet forbids speech that is essential, he says. Instead, we should conceive of free speech first and foremost as a means to achieve civic deliberation and true popular sovereignty. Building on James Madison, Sunstein proposes a "New Deal" for the first Amendment, a new interpretation that attacks undifferentiated absolutism and replaces it with a vision of responsible public life. Sunstein examines broadcasting, campaign finance, hate speech, pornography, government art funding, commercial speech, and the privacy of rape victims. He insists that political speech, essential for the functioning of any democracy, must not only be protected, but encouraged. If the government, say were to use broadcasting markets to encourage attention to public issues and diverse points of view, the First Amendment would not stand in the way. Nonpolitical speech, on the other hand, should be less fully protected when it conflicts with other interests and rights such as that of privacy. Democracy cannot achieve its full potential with a stunted public discourse. Instant polls and 900 numbers may seem to increase political participation, but they are no substitute for reasoned and careful public deliberation. In Democracy and the Problem of Free Speech, Cass Sunstein points the way toward a renewal of American democracy and a reaffirmation of political equality.
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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 the equal 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 equals and 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.
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Although the Bill of Rights has existed for two hundred years, the last half century has seen dramatic changes in its meaning and scope. The essays collected in this volume represent the full range of views and interpretations of what these first ten amendments to the U. S. Constitution mean today as guarantors of individual rights. The contributors to this volume are among the most prominent constitutional scholars in the country. Most of the essays are grouped in pairs, each of which offers conflicting positions on current constitutional controversies, including property rights, freedom of religion, freedom of speech, levels of generality in constitutional interpretation, and unenumerated rights. The contributors are: Bruce Ackerman, Mary E. Becker, Ronald Dworkin, Frank H. Easterbrook, Richard A. Epstein, Charles Fried, Mary Ann Glendon, Philip B. Kurland, Frank J. Michaelman, Michael W. McConnell, Richard A. Posner, Kathleen M. Sullivan, John Paul Stevens, David A. Strauss, and Cass R. Sunstein.
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Cass R. Sunstein, Politics and Preferences, in Democracy: Theory and Practice (John Arthur ed., 1992).
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Eastern Europe is now undergoing three distinct transitions: to markets, to democracy, and to constitutionalism. Under current conditions, the transition to constitutionalism is a logical precondition for the transitions to markets and democracy. To protect both of these, it is especially necessary to develop an “economic bill of rights” for inclusion in the new constitutions. This bill of rights should include the rule of law, protection of private property, freedom of contract, occupational liberty, the right to travel within and without the nation, and a prohibition on government monopolies; other similar provisions should be considered as well. The new constitutions should not include general aspirations, duties, or positive rights. The eventual development of an economic bill of rights—a precommitment strategy designed to promote prosperity and democracy—could constitute a new and important contribution to the theory and practice of constitutionalism.
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Markets, it is sometimes said, are hard on discrimination. An employer who finds himself refusing to hire qualified blacks and women will, in the long run, lose out to those who are willing to draw from a broader labor pool. Employer discrimination amounts to a self-destructive “taste” – self-destructive because employers who indulge that taste add to the costs of doing business. Added costs can only hurt. To put it simply, bigots are weak competitors. The market will drive them out. On this account, the persistence of employment discrimination on the basis of race and sex presents something of a puzzle. And if markets are an ally of equality and a foe of employment discrimination, perhaps discrimination persists because of something other than markets. Perhaps labor unions are to blame; perhaps the real culprit is the extensive federal regulation of the employment market, including minimum-wage and maximum-hour laws and unemployment compensation. If competitive markets drive out discrimination, the problem for current federal policy lies not in the absence of aggressive anti-discrimination law, but instead in the absence of truly competitive markets. If this account is correct, the prescription for the future of anti-discrimination law is to seek ways to free up employers from the wide range of governmental disabilities – including, in fact, anti-discrimination law itself. The argument seems to be bolstered by the fact that some groups subject to past and present prejudice – most notably, Jews and Asian-Americans – have made substantial progress in employment at least in part because of the operation of competitive markets.
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