โ Scribed by Samuel Freeman
No coin nor oath required. For personal study only.
Constitutional theory of the past fifteen years has achieved a high level of sophistication, largely due to the influence of political philosophy. This development stems from the pressing need to provide a theoretical framework and justification for the activist rights-based jurisprudence of the Warren Court era as it seeks an equilibrium. Criticisms of this legacy have risen to the philosophical challenge. As a result, constitutional law itself is gradually undergoing a change: for better or worse, judges are increasingly sensitive to the philosophical commitments of legal decisions.
Cass Sunstein's The Partial Constitution occupies a place among the finest work in recent constitutional theory. It unobtrusively melds political philosophy and economics into its assessment and criticisms of constitutional cases and trends. And it proposes a distinct normative view of our constitution, as a "deliberative democracy."
"Status quo neutrality" is the primary critical concept Sunstein uses. Neutrality is an entrenched concept in constitutional commentary. Since Herbert Wechsler's article, 1 the idea has become a staple of criticisms against an active judiciary. Wechsler criticized Brown v. Board of Education as not grounded in "neutral principles," since constitutional enforcement of blacks' desires to attend integrated schools ignores segregationists' desires that their children attend exclusively white schools. More recently, Robert Bork has attacked the entire Warren Court era as grounded in "non-neutral" and "unprincipled" jurisprudence for similar reasons. 2 But as Sunstein says, "the category of neutrality turns out to be far more difficult
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