The Partial Constitution.

It is ironic that there is greater stir among the Russian people about their new constitution than among Americans about our own. For if the truth be told, we focus as a nation on the meaning of our Constitution only fleetingly. It occupies the popular imagination when the president nominates a new justice to serve on the Supreme Court, whether the appointee is a Robert H. Bork or a Ruth Bader Ginsburg. But who pays attention to constitutional matters at all during the long off-season between Senate confirmation hearings? Too few, according to Cass Sunstein, for whom the business of constitutional interpretation is far too important to our republic to be entrusted to judges and professors of constitutional law. In this volume he probes deeply the importance of constitutional interpretation for the quality of political discourse in our democracy. And he challenges all serious citizens to reflect about the critical connection between the limits that our Constitution places on governmental power and the quality of our own participation in our democracy.

Sunstein has produced an essay that is provocative in the best sense of that term; it provokes fresh insight, new ways of thinking about matters that have become dull in the hands of lesser lights. He constructs a compelling general theory of constitutional interpretation, according to which "naked preferences" of vested interests must give way to public values in our "republic of reasons." "At the heart of the liberal tradition and its opposition to authoritarianism," he writes, "lies a requirement of justification by reference to public-regarding explanations that are intelligible to all citizens." He follows his own canon of intelligibility, writing deftly for those familiar with the methods of constitutional interpretation but rendering these methods accessible to readers who may be complete neophytes.

At the core of Sunstein's theory is a rejection of what he calls "status quo neutrality," that is, the mistaken belief that all current arrangements and practices are "neutral" and may not be set aside without disrupting the basic trust that the Constitution is typically thought to repose in elected representatives of the people. Sunstein is skillful in his unmasking of such formal neutrality.

A classic instance of reasoning based on "status quo neutrality" is the wooden construction of the First Amendment in the 1976 Buckley v. Valeo case, which undid the modest post-Watergate political reform limiting campaign expenditures because "the existing distribution of wealth [was] seen as a given, and failure to act - defined as reliance on markets - [was] treated as no decision at all." Sunstein's critique of this line of thinking is all the more refreshing for its emanating from the University of Chicago, where he teaches jurisprudence: "Neutrality is inaction, reflected in a refusal to intervene in markets or to alter the existing distribution of wealth. This is so despite the fact that markets are conspicuously a regulatory system, and reliance on markets for elections is a regulatory choice." Sunstein has proposed a "New Deal for Speech" that allows us to imagine a day when Buckley, will be overruled and when the First Amendment would actually reinvigorate the processes of deliberative democracy, for example, by requiring candidates for public office to address issues of pressing public importance.

To replace status quo neutrality, Sunstein calls for constitutional interpretation that takes into account the crucial distinction between "a system in which representatives try to offer some reasons for their decisions, and a system in which political power is the only thing at work." This in turn invokes his way of thinking about the role of the judiciary in a democratic republic.

Sunstein would have the courts require from the government real reasons for policy choices, not feigned ones invented by government attorneys - or worse still, by the judges themselves - to mask commitments to the status quo. But once a judge is satisfied that public values do in fact account for legislation, he would not have the judiciary impose its own preferences, for the excellent reason that this would undermine the very faith in representative democracy that Sunstein is at pains to sustain. He would, moreover, not grant to judges a roving warrant to do good, but would require of them publicly accessible justifications of their constitutional interpretations.

At this point in the argument Sunstein begins to sound like those committed to judicial restraint, such as self-styled "originalists" like Chief Justice William H. Rehnquist, Justice Antonin Scalia, and Judge Bork. He certainly agrees with their view that constitutional interpretation must be based on "an overriding commitment of fidelity to [the] text, structure, and history" of the Constitution itself But Sunstein parts company with Rehnquist and Scalia by insisting that external justifications or substantive political arguments inevitably enter into constitutional interpretation. He winds up with a far more substantial view of constitutional interpretation than that espoused by "realists" like Oliver Wendell Holmes, Jr., and Jerome Frank, for whom the interpretation of the Constitution is mostly judicial hunch or whim.

Having achieved a better account of constitutional theory than many other scholars in this field, Sunstein is not content to leave his contribution at that level of generality. In the second half of the book he offers several rich illustrations of the consequences of adopting his theory. The applications include free speech (with special focus on political deliberation), pornography, abortion, surrogacy, the use of public funds for speech, education, and reproduction, as well as the limits of what he calls "compensatory justice."

Among such a wide array of controversial subthemes, readers are bound to find some arguments more persuasive than others. I found Sunstein's argument about campaign reform compelling. I am less satisfied with his argument on abortion, even though it is far more interesting than most liberal explorations of this theme. The 1973 Roe decision rested its conclusion protecting abortion on a view of individual autonomy and privacy. Sunstein offers a different argument, grounded in concerns about equality. By focusing on the "sexual and reproductive status quo" as a "locus of inequality," Sunstein finds a common thread among current policies relating to pornography, abortion, and surrogacy. He urges "the need to ensure that women's sexuality and reproductive functions are not turned into something for the use and control of others. ... [A] legislature may prevent society from turning morally irrelevant characteristics - most conspicuously race and sex - into systemic sources of social disadvantage." One difficulty with this argument is that he offers no empirical evidence as to whether easy abortion produces less or more control of women by men. Another is that the argument from equality seems at odds with his own predicates about who should count within our republic, for it fails to weight significantly the equality interests of the child within the maternal womb - whether male or female; whether white, black, or any other color - that cannot be ignored in the abortion controversy.

Sunstein advocates an active role in constitutional choices by our elected representatives. As valuable as this insight is for reinvigorating democracy, it does not offer a principled basis for determining the right outcome of crucial matters of public controversy. For example, are New York legislators right when - in response to the overwhelming popular will - most of them try for years to include the death penalty among the legal sanctions of that state? Or is Governor Mario Cuomo right when he vetoes these efforts consistently over the years? Sunstein does not address the death penalty in this volume, and it is difficult to know whether the principles he sets forth here can ground a "public-regarding" argument either for the New York legislature or for Governor Cuomo on this matter, which cries out for more than the self-interested slogans that now pass for public policy.

With his carefully delineated account of our national story from the period of the founding through the development of the modern welfare state, Sunstein has rescued our history from those who claim that their conservative enterprise is the only way to be faithful to our heritage. With his sharp rejection of status quo neutrality, he has offered liberalism a way out of its curious distrust of elective politics. In so doing, he enables us to reject both the romantic nostalgia for a past that never was and the mindless activism that is content to let judges impose their will upon us virtually without reference either to the popular will or to the anchors of past precedents. In one stroke he has challenged us both to think more carefully about the origins of our nation and to care more thoughtfully about the direction of our future.