I've been working through several books recently. I just finished Cass Sunstein's latest book, Radicals in Robes, about the dangers of (conservative) judicial activists. Sunstein (a very prolific professor at the University of Chicago) advocates a "minimalist" jurisprudence when it comes to the Constitution - he wants judges to take baby steps, so to speak, and not do anything too drastic. (This is a long post, so click on "read full post" to get the rest.)
I'm working on a book review to submit to an academic journal about it. I have some little quibbles with him (for example, he insists on naming his jurisprudential opponents "fundamentalists," even though the religious people who actually use that term to describe themselves would not consider any of the current Supreme Court Justices to be real Christians, especially the Catholic ones). My main objection, however, is that he wants the right thing for the wrong reason. Sunstein's incrementalist philosophy is based on something that is either intellectual humility or mild agnosticism (is there a difference?); given that we can never be sure we're completely right or perfectly informed, we should avoid making drastic decisions that burn our bridges behind us. His whole paradigm seems reminiscent of 1960's-style "situational ethics," taking everything on a case-by-case basis instead of making absolute legal rules.
The better argument for incrementalism, I think, is classical, free-market economics. Stability in our society - whether in the political realm or the legal system - encourages investment and productivity. The real genius of our Constitution, ironically, is that it created the perfectly inefficient government. I know, I know, there's the stuff about rights and freedom, too, but frankly, the Framers picked a handful of rights/freedoms from a rather long menu of possibilities, giving us just enough to keep the courts busy for a few hundred years. I am not sure it would have mattered which handful of rights they would have picked off the menu - just a handful seems to be enough to keep the government tied up.
More to the point of keeping the government tied up, however, is the byzantine system of checks and balances, or separation of powers, created by having three branches of government (for the federal government, and eventually for all the states), one of which is further divided into half (the legislature), and all of which have to contend with 50 smaller version of themselves. It is very difficult to get anything done, or make any major changes, now matter how hard one tries (despite the Republicans capturing all three branches of the federal government, for example, they still can't do anything about hurricanes or killer oil prices, much less impose a totalitarian state). We can make changes, and we do, but it takes a great deal of effort to make very modest changes. It's really brilliant, from an economic point of view. It ensures that we can make progress, over time, without being able to mess up too much (or do too much irreparable harm) overnight. If I had a lot of money in 1790, I might have invested in a country like that. Stable returns, moderate risk. I might have been motivated to work hard so I'd have something to save, too.
I know everyone complains about how inefficient the government can be, but that is a wonderful thing if you have a government that is prone to mistakes. I want bad drivers to have slow cars. So, I think Cass Sunstein is right, that the Supreme Court should not do anything like trying to catapult the entire nation back to 1934 (which some activist judges want), because I think the whole point of the Constitution was to create as inefficient a government as possible, while still allowing for some progress, flexibility, and change.
Just for fun, I am also reading Richard Epstein's apparent retort to Sunstein's book (Epstein also teaches at the University of Chicago, but apparently at another end of the campus). Epstein sort of wants to turn back the clock to 1934, before the Progressives messed up our country - hence the title of his entertaining book, How the Progressives Rewrote the Constitution. I confess I like his writing style better than Sunstein's - something about Sunstein's books always seems fluffy to me - and Epstein makes up for his audacity with his clarity of thought and force of expression. An enjoyable read, but so far I think he overlooks the problems of externalities with things like pollution and even discrimination. The older I get, the less autonomous I feel - everything I do seems to effect others in ways I couldn't imagine. Oops. Thank good ness for regulations.
In my car I am reading another book (on audio CD) - Noam Chomsky's latest, Failed States. It is completely fanatical, an imbalanced, raving jeremiad against the evils of our government (at least in foreign policy) - back to about 1816, if I understood him right (basically, we've never had a just government in America, as far as he is concerned, and for some reason that doesn't make him feel like it's hopeless, like it does me). I am a huge fan of Chomsky's linguistics stuff, and I sort of appreciate radicalism for its own sake, which is the only reason I could make it past the first CD (I think I have ten to go!). Next time, I will buy the ABRIDGED version (if he digresses into that Nicaragua thing one more time, I might move further to the right just to spite him...)
Anyway, it is growing on my, to the chagrin of my oldest son, who cannot believe I will listen to someone who hates Israel so much (well, I just skip to the next track...). I am starting to think that Chomsky's hangup is that he is a Kantian moralist - he keeps talking about the "rule of universality" as the most basic, fundamental notion of ethics and morality, which sounds something like Kant's "categorical moral imperative." (It sure sounds different than Sunstein's "one case at a time" mantra). Chomsky just cannot understand how anyone could - honestly - be a utilitarian in foreign policy (like Kissinger, whom he quotes repeatedly, and who basically says we should do whatever protects American interests). I am starting to like his appeal for consistency and morality, but I find myself searching for examples of any country in the world that is not basically self-serving and self-centered in its dealings with other nations. There must be an example, but I can't think of any. Maybe Canada? I do like it that he spends as much time criticizing Clinton as he does Bush. The biggest flaw in Chomsky's book is that it is too one-sided; if America was anywhere near as bad as he portrays it, he would not be able to write and sell books like this (and certainly not every year or two!). It is a tribute to our country that we let people publish things about how awful our country is.
Next on my shelf is Ronald Dworkin's new book Justice in Robes. I cheated and read half of the introduction. He seems to be criticizing basically everybody else whose books I read.