The Partial Constitution

法理學經典導讀桑斯汀 ·《偏頗的憲法》

Cass R. Sunstein, THE PARTIAL CONSTITUTION

黃丞儀中央研究院法律學研究所副研究員

The Partial Constitution  (1993)

• Feminism and Political Theory (1990)

• The Bill of Rights and the Modern State (1992)

• After the Rights Revolution: Reconceiving the Regulatory State (1993)

• The Partial Constitution (1994)

• Democracy and the Problem of Free Speech (1995)

• Legal Reasoning and Political Conflict (1996)

• Free Markets and Social Justice (1997)

• Clones and clones: Facts and Fantasies About Human Cloning (1999)

• The Cost of Rights: Why Liberty Depends on Taxes (2000)

• Behavioral Law and Economics(2000)

• The Vote: Bush, Gore, and the Supreme Court (2001)

• Designing Democracy: What Constitutions Do (2001)

• One Case at a Time: Judicial Minimalism on the Supreme Court (2001)

• Republic.com 2.0. (2002)

• Punitive Damages: How Juries Decide (2002)

• The Cost-Benefit State: The Future of Regulatory Protection (2003)

• Why Societies Need Dissent (2003)

• Risk and Reason: Safety, Law, and the Environment (2004)

• Animal Rights: Current Debates and New Directions (2004)

• Laws of Fear: Beyond the Precautionary Principle (2005)

• Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America(2005)

• The Second Bill of Rights: FDR's Unfinished Revolution--And Why We Need It More Than Ever(2006)

• Infotopia: How Many Minds Produce Knowledge(2006)

• Are Judges Political?: An Empirical Analysis of the Federal Judiciary(2006)

• Worst-Case Scenarios(2007)

• Nudge: Improving Decisions About Health, Wealth, and Happiness (2008)

• Going to Extremes: How Like Minds Unite and Divide(2009)

• On Rumors: How Falsehoods Spread, Why We Believe Them, and What Can Be Done(2009)

• Law and happiness (2010)

• A Constitution of Many Minds: Why the Founding Document Doesn't Mean What It Meant Before (2011)

• Simpler: The Future of Government (2013)

• Valuing Life: Humanizing the Regulatory State (2014)

• Conspiracy Theories and Other Dangerous Ideas (2014)

• Wiser: Getting Beyond Groupthink to Make Groups Smarter (2014)

• Why Nudge?: The Politics of Libertarian Paternalism (2015)

• Choosing Not to Choose: Understanding the Value of Choice (2015)

Neutrality and Objectivity

• Status Quo Neutrality = Embodiment of a certain economic theory (a perspective of substantive justice)

• Interpretive Neutrality = Legal Formalism

• Both reject open-ended judgment of values• Both obscure its dependence on substantive

commitments, escaping responsibility

Formalism

• Originalism:

(1) Robert Bork, THE TEMPTING OF AMERICA“The political content of that choice is not made by the judge, it was made long ago by those who designed and enacted the Constitution.”• neutral vs. political• Neutrality as legitimacy (original meaning) External justification is inevitable

Originalism

• Frank Easterbrook“Judicial review is justified only because the people specifically authorized it.”

• Bork, “all revisionist theories require judges to make a major moral decision; legitimate judges, by contrast, are simply agent of the people.”

People cannot all agree to a single moral system.

Theories of Constitutional Interpretation

• Semantic Principles vs. Substantive Principles

• Sunstein: “The language of the Constitution does not say whether the original understandings control its meaning.”

• “There is no pre-interpretative brute fact of that matter, to be uncovered without resort to controversial substantive ideas.”

• “The central characteristic of substantive principles is that their selection must be justified in moral and political terms.”

Democracy-reinforcement Theory

• John Hart Ely, Procedural Democracy and Judicial Review

• Sunstein: still lacking of substantive conception

Lawrence Tribe and Michael Dorf

• Structural Interpretation

• Still text-based; interpretation with discretion

• The Meaning of Constitution, e.g. freedom of speech prevails?

Legal Authoritarianism

• Resorting to fixed answer, without reasoning• Ultimate justification is force or bargaining.• Bork’s originalism

• Authoritarianism may be very democratic: majoritarian authoritarianism (they are majority so they prevail)

• To them, constitutional prohibition on naked preferences seems unacceptably undemocratic.

Democratic Authoritarianism

• Holmes, “the ultimate rationale of sovereignty is force.”

• Hugo Black, constitutional text was usually self-interpreting

• Authoritarian: (1) judicial restraint (2) linguistic anchors

Critiques on Hart’s Positivism

• Disregarding the need for interpretive principles without which to give meaning to a legal text external to the text

• Meaning is a function of interpretative principle and that it is necessary to have good principles rather than bad ones.

Critiques on Dworkin• The existing law is not a brute fact, but always and inevitably

a product of interpretative principles.

• Dworkin’s description of “the best it can be” seems to repeat the positivist’ mistake of seeing law as something to be found.

• For lawyers, it is something quite different, that is a more internal, though value-laden, inquiry into what position now within the legal culture can be supported by good argument.

Deliberative Democarcy

• Primacy of Electoral Outcome

• Importance of Political Deliberation

• Information Flow

• Self-interest of well-organized private groups

Three Commitments to Political Deliberation

• Citizenship: Civic participation in a well-functioning democracy requires security and independence of the citizens

• Agreement as a Regulative Ideal: “They believe that there are frequently correct answers to political controversy. Answers are understood to be correct through the only possible criterion, that is, agreement among equal citizens.”

• Political Equality: bans disparities in the political influence held by different social groups

• Freedom of speech• Access to good education

• Three principles(1) Freedom from desperate conditions(2) Opposition to caste systems(3) Rough equality of opportunity

John Dewey, “ the need to develop a conception of liberty dedicated to establishing the social preconditions for political deliberation.” Political prgamtism

Democratic Pragmatism

• Democracy itself tends to inculcate valuable characteristics in human beings.

• Liberal institutions to influence “people’s deepest aspirations” and “can have decisive long-term social effects and importantly shape the character and aims of the members of society, the kinds of persons that they are and want to be.”

After the Rights Revolution: Reconceiving the Regulatory State

(1993)

Free Markets and

Social Justice (1999)

Legal Reasoning and

Political Conflict 

(1998)

Behavioral Law and Economics (2000)

Risk and Reason:Safety, Law, and the Environment  (2004)

Laws of Fear:Beyond the Precautionary Principle (2005)

Nudge:Improving Decisions About Health, Wealth, and Happiness

(2008) (2009)

Radicals in Robes:Why Extreme Right-Wing Courts

Are Wrong for America(2005)

Valuing Life:Humanizing the Regulatory State 

(2014)