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

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

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

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


The future of the U. S. Supreme Court hangs in the balance like never before. Will conservatives or liberals succeed in remaking the court in their own image? In A Constitution of Many Minds, acclaimed law scholar Cass Sunstein proposes a bold new way of interpreting the Constitution, one that respects the Constitution's text and history but also refuses to view the document as frozen in time.

Exploring hot-button issues ranging from presidential power to same-sex relations to gun rights, Sunstein shows how the meaning of the Constitution is reestablished in every generation as new social commitments and ideas compel us to reassess our fundamental beliefs. He focuses on three approaches to the Constitution--traditionalism, which grounds the document's meaning in long-standing social practices, not necessarily in the views of the founding generation; populism, which insists that judges should respect contemporary public opinion; and cosmopolitanism, which looks at how foreign courts address constitutional questions, and which suggests that the meaning of the Constitution turns on what other nations do.

Sunstein demonstrates that in all three contexts a "many minds" argument is at work--put simply, better decisions result when many points of view are considered. He makes sense of the intense debates surrounding these approaches, revealing their strengths and weaknesses, and sketches the contexts in which each provides a legitimate basis for interpreting the Constitution today.

This book illuminates the underpinnings of constitutionalism itself, and shows that ours is indeed a Constitution, not of any particular generation, but of many minds.


When Americans think of constitutional law, they tend to focus on the particular controversies of the day. Does the Constitution protect the right to have guns? Will the Court permit the president to detain suspected terrorists? Is there a constitutional right to have abortions? Should states have to recognize same-sex marriages? Are affirmative action plans constitutional? Questions of this kind are always pressing, but they receive special attention whenever the Court is in a time of transition. in any such period, people ask: What will be the future of constitutional law?

In this book, I step back from current disputes and focus instead on some large and enduring issues. These issues have been with us from the founding. They cut across changes in the Court's composition. They arise in many nations, not merely the United States. the issues involve the roles of traditions, public opinion, and foreign law. I mean, in short, 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 political majorities should respect long-standing 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 believe something, they are probably right, and elected representatives should defer to them. Cosmopolitans believe that if many nations, or many democratic nations, reject a practice, or accept a practice, the U.S. Supreme . . .

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