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Designing Democracy: What Constitutions Do By Cass R. Sunstein Oxford University Press, New York, N.Y. 280 pages. $29.95. What if the United States had no written constitution? Would we protect free speech and the free exercise of religion and insist on due process, anyway? What kinds of provisions should a constitution contain? As lawyers we are trained to focus on our Constitution’s specific language. Cass Sunstein, professor at the University of Chicago Law School, asks us to step back and consider these more basic questions in this provocative, idiosyncratic new book — questions made particularly apt by the dramatic recent events that have caused some in government and elsewhere to be willing to jettison constitutional safeguards. He then sets off on quick guided tour of several topics: secession, impeachment, rights of homosexuals, gender discrimination and how constitutions ought to deal with them. Sunstein sees constitutions as furnishing a “guarantee of deliberation” before governmental decisions are made. By creating the structure for “deliberative democracy,” they offset the centrifugal forces of partisan extremism that can tear nations apart. But one must ask how Britain achieved democracy and national unity without a written constitution, as did Canada, which adopted one only recently, while countries with mellifluous constitutions — the Soviet Union, Argentina, many African nations — have failed to avoid the reefs. Perhaps history and culture have more to say here than Sunstein would concede. And, even under our own Constitution, the Supreme Court managed to uphold the separate-but-equal doctrine for decades and to approve detaining thousands of Japanese-Americans for most of World War II. The author sensibly notes that groups who talk among themselves often veer toward polarized, extreme views. Constitutions ensure breathing space for these “enclaves,” as he calls them, preventing them from whirling off into violence or secession. Some of his examples of polarization, though, are debatable: He cites surveys that 90 percent of jury verdicts conform to the results of polling before those juries deliberated. But, perhaps, that simply means most of those verdicts were predictable or reflected biases that existed both before and after the juries weighed the evidence. As for the dangers of secession, the author argues constitutions reduce them by providing room for debate, although this safeguard notably failed us in 1861. Was this largely because the Supreme Court dodged the unconstitutionality of slavery while fervently enforcing the Fugitive Slave Act in the Dred Scott case? As Chief Justice Charles Evan Hughes was much later to remark, the Constitution is what the judges say it is — and the judges helped steer the nation into Civil War. Sunstein wisely rejects the originalism insisted upon by Justice Antonin Scalia and company, noting that altered circumstances inevitably lead to the development of constitutional principles not extant over a century ago: protection of privacy, striking down bans on interracial marriage and the like. He argues from this that laws banning consensual homosexual conduct should be struck down on equal protection grounds, a claim not advanced in Bowers v. Hardwick, where a narrow Supreme Court majority found such laws not to violate due process privacy rights. But Sunstein oddly relies on a D.C. Circuit decision so holding, while not telling us (except in a bland footnote citation) that the same court, sitting en banc, vacated that ruling on the merits and upheld the Navy’s “don’t ask, don’t tell” rule. Turning to presidential impeachment, the author contends the Constitution’s original intent — here he relies on it — was to limit this to “egregious or large-scale abuses” of “distinctly presidential powers.” He argues that limiting those impeachments to “Treason, Bribery, or other high Crimes and Misdemeanors” shows an intent to restrict them to “egregious misuse of public office,” which, he asserts, excludes the perjury and obstruction of justice based on the private Paula Jones suit with which President Bill Clinton had been charged. Sunstein is surely correct that the Clinton impeachment was politically motivated and highly polarizing. But his attempt to support this view by pointing out that President Franklin Roosevelt was not impeached for aiding Britain before the Lend-Lease Act became law, or President John Kennedy for sexual relationships that were only rumored, seems a bit of a stretch. And President Andrew Johnson was impeached for dismissing his Secretary of War, Edwin M. Stanton, not his Secretary of State as Mr. Sunstein describes it. Sunstein is on firmer ground when he explores the doctrine that legislative power may not be delegated, recently rejected by the Supreme Court in a Clean Air Act case and based largely on two 1935 decisions. As he points out, the doctrine has had “one good year and 212 bad ones.” The notion that Congress is somehow better equipped to regulate industry and business than are administrative agencies is refuted daily by instances of Congress ministering to private interests in energy, environmental and transportation policy. As the author notes, the agencies have far greater expertise, and canons of statutory construction mandate yielding to Congress anyway when issues as to the taking of property, extraterritorial application of laws and interference with individual rights crop up. Yet, he favors leaving issues like regulating violence on television to Congress rather than the FCC, though the First Amendment barriers to any such controls would remain as daunting in either case. Finally, the author looks at constitutions like South Africa’s that affirmatively provide for housing, health care and other socioeconomic rights. He favors such provisions, citing a South African court decision requiring that government act toward “the progressive realization” of the right to housing, in a suit brought by squatters about to be evicted. But, as he recognizes, there are enormous problems with the courts enforcing affirmative economic rights. Our own courts have had travail enough in implementing equal protection rights to equity in public school funding. As noted, Sunstein works both sides of the street with regard to whether courts should follow the Constitution’s original intent, perhaps mindful of Justice Robert Jackson’s comment that it “must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” His analysis of our Constitution and others is thoughtful and insightful, and his conclusion that constitutions should furnish a “guarantee of deliberation” and promote justice surely makes sense. Unfortunately, it takes more than that to actually achieve justice, as our own history shows. Philip Weinberg teaches constitutional law at St. John’s Law School. He also is editor-in-chief of The Supreme Court (Macmillan).

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