Constitutional Personae: Heroes, Soldiers, Minimalists, and Mutes

Hardcover | September 18, 2015

byCass R. Sunstein

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Since America's founding, the U.S. Supreme Court had issued a vast number of decisions on a staggeringly wide variety of subjects. And hundreds of judges have occupied the bench. Yet as Cass R. Sunstein, the eminent legal scholar and bestselling co-author of Nudge, points out, almost every oneof the Justices fits into a very small number of types regardless of ideology: the hero, the soldier, the minimalist, and the mute. Heroes are willing to invoke the Constitution to invalidate state laws, federal legislation, and prior Court decisions. They loudly embrace first principles and are prone to flair, employing dramatic language to fundamentally reshape the law. Soldiers, on the other hand, are skeptical of judicialpower, and typically defer to decisions made by the political branches. Minimalists favor small steps and only incremental change. They worry that bold reversals of long-established traditions may be counterproductive, producing a backlash that only leads to another reversal. Mutes would rather saynothing at all about the big constitutional issues, and instead tend to decide cases on narrow grounds or keep controversial cases out of the Court altogether by denying standing. As Sunstein shows, many of the most important constitutional debates are in fact contests between the four Personae. Whether the issue involves slavery, gender equality, same-sex marriage, executive power, surveillance, or freedom of speech, debates have turned on choices made among the fourPersonae - choices that derive as much from psychology as constitutional theory. Sunstein himself defends a form of minimalism, arguing that it is the best approach in a self-governing society of free people. More broadly, he casts a genuinely novel light on longstanding disputes over the proper wayto interpret the constitution, demonstrating that behind virtually every decision and beneath all of the abstract theory lurk the four Personae. By emphasizing the centrality of character types, Sunstein forces us to rethink everything we know about how the Supreme Court works.

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Since America's founding, the U.S. Supreme Court had issued a vast number of decisions on a staggeringly wide variety of subjects. And hundreds of judges have occupied the bench. Yet as Cass R. Sunstein, the eminent legal scholar and bestselling co-author of Nudge, points out, almost every oneof the Justices fits into a very small numb...

Cass R. Sunstein is the Robert Walmsley University Professor at Harvard Law School. From 2009 to 2012, he was Administrator of the White House Office of Information and Regulatory Affairs. One of the nation's most prolific scholars, his books include Nudge, Radicals in Robes, Simpler, and Republic.com.

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Format:HardcoverDimensions:192 pages, 8.25 × 5.5 × 0.98 inPublished:September 18, 2015Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0190222670

ISBN - 13:9780190222673

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Table of Contents

Preface1. Constitutional Personae2. Interpretation3. Burkean Minimalism4. Unanimity and Disagreement on the CourtA Closing Word: Rules of AttractionAcknowledgements