Lawprof James Ryan has posted an interesting review of recent books by Justice Breyer and Cass Sunstein: Does It Take a Theory? Originalism, Active Liberty and Minimalism, forthcoming in the Stanford Law Review. From the abstract:
This review essay examines two recent books, Active Liberty by Justice Stephen Breyer, and Radicals In Robes by Professor Cass Sunstein, and it assesses them in relation to their main target – Justice Scalia and his brand of originalism. Both books are self-consciously designed to influence public debate over how best to interpret the Constitution, a debate that originalists have dominated for the last fifteen years or so.
There is much to admire in these books. Both are engaging and at times quite provocative. Justice Breyer’s book is candid and smart. He offers no pat answers or simplified formula for deciding cases, which is to his credit and speaks well of his intellectual honesty. Professor Sunstein’s book, in turn, is quite effective in poking holes in the form of originalism he dubs “fundamentalism” and in highlighting the numerous instances where “fundamentalists” like Justices Scalia and Thomas seem to deviate from their avowed methodology. For those who have been waiting for a public response from the left, these books are a sight for sore eyes, if for no other reason than they constitute an attempt to push back at the level of ideas.
And yet the books fall a bit flat, at least in the eyes of this (sympathetic) reader. The basic problem is suggested by the title of this review: neither Justice Breyer nor Professor Sunstein offers and justifies a theory of constitutional interpretation. Justice Breyer comes closer than Professor Sunstein. But in my view, neither Active Liberty nor Radicals in Robes explains and justifies, in terms plain enough to influence public debate, how judges ought to decide cases. In their haste to distance themselves from originalism, moreover, both Justice Breyer and Sunstein seem to distance themselves from the text of the constitution. These seem to me fatal missteps in their effort to persuade a general audience to reject originalism and embrace an alternative.
Thanks to Legal Theory Blog for the link.