Constitutionalism, Hegel, and Us
Constitutionalism is in crisis—obviously in Europe, more arguably in America. High on the list of intellectual breakthroughs that might help us sort through our contemporary confusions is Georg...
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Missing the Significance of Cass Sunstein
The news that Cass Sunstein returns to Harvard Law School from his position as policy chief at the Office of Management and Budget provoked a divided response. On his policy legacy, the left and right...
View ArticleCass Sunstein on the Constitutionality of Affirmative Action
Cass Sunstein has a post criticizing originalists Justice Scalia and Thomas for the alleged inconsistency of their opinions with originalism. The main focus of his article is affirmative action, about...
View ArticleCass Sunstein and the Originalist Case for Commercial Speech Protection
In my last post, I criticized Cass Sunstein’s originalist case against the colorblind constitution. Here I discuss Sunstein’s criticism of Scalia and Thomas for their views on commercial speech....
View ArticleCass Sunstein on Regulatory Takings
I have been doing a series of responses to Cass Sunstein’s criticism of the originalist Supreme Court Justices: See these posts on affirmative action, and commercial speech. This post discusses...
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Let the Sunstein In
Watershed election presidents such as Abraham Lincoln and Franklin Roosevelt do not simply happen on election day. The significance of the election is played out in speeches that illuminate and in...
View ArticleFat, Stupid and in Debt
In the New York Review of Books, Cass Sunstein reviews Sarah Conly’s Against Autonomy: Justifying Coercive Paternalism, just out from Cambridge University Press. I haven’t read the book, and I do not...
View ArticleWas Justice Black the Most Overrated Justice? No way!
Cass Sunstein has a column arguing that Justice Hugo Black “who served from 1937 to 1971, is the court’s most overrated justice.” I strongly disagree with Sunstein (hardly the first time); I think...
View ArticleCass Sunstein Reviews Richard Epstein’s The Classical Liberal Constitution
At the New Republic, Cass Sunstein reviews Richard Epstein’s new book on the Constitution. I have a mixed reaction to Sunstein’s review, agreeing with parts but disagreeing with more of it. 1....
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It’s My Party. Cry If You Want To.
Professor Cass R. Sunstein has unearthed a new –ism: partyism, meaning an animus or aversive reaction to someone based solely on party membership. As in: “I don’t care if people think I’m a racist or...
View ArticleA Partyist Solution to Partyism
Cass Sunstein has offered a new solution to advance good governance in a time of partisanship—what he terms an age of “partyism.” Because a partisan world leads to gridlock in Congress, he suggests...
View ArticleAgainst Judicial Minimalism
At the beginning of this term of the Supreme Court, Cass Sunstein has praised judicial minimalism. Professor Sunstein argues that the justices should decide cases as narrowly as possible: “Minimalists...
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The Judicial Necessity of Constitutional Choice
Cass Sunstein is among the country’s foremost legal scholars, distinguished by both his prodigious output and an interdisciplinary approach that draws on the insights of behavioral psychology,...
View ArticleSunstein’s False Claim that Scalia Was a Living Constitutionalist
In an essay forthcoming for the Harvard Law Review, Cass Sunstein argues that Justice Antonin Scalia was in many important opinions a practitioner of living constitutionalism, that is someone who...
View ArticleCass Sunstein on Star Wars
Over at the Volokh Conspiracy, Cass Sunstein has been blogging on his new book on the Star Wars movies. He loves them and finds a variety of things to say about them that are more serious than Star...
View ArticleDelegation, Unilateral Executive Authority and the Decline of Democracy
In a recent post, I discussed how Cass Sunstein argued, with the aid of the Star Wars saga, that delegation to the executive could be dangerous to democracy. While Posner and Vermeule contend that...
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Can Behavioral Economics Justify the Unbound Regulator?
“You must be the best judge of your own happiness.” Jane Austen said that, in Emma, but the statement is also a keystone principle of modern microeconomic theory, and it provides the epistemic...
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Why Originalism?
In a recent column criticizing originalists for putting politics over principle, Cass R. Sunstein described a common take on what motivates originalism: “Originalists have an honorable goal, which is...
View ArticleSunstein’s Critique of Originalism
In his most recent column, Harvard Law Professor Cass Sunstein criticizes originalism: But originalism is just one of many possible approaches to the Constitution. If it is taken seriously, there is a...
View ArticleSunstein on Regulatory Reform
Few people who served in the Obama Administration or are professors at Harvard Law School praise the Trump Administration for anything, but Cass Sunstein is commending the Trump Executive Orders on...
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