In the United States (US), the judiciary holds the authority to conduct constitutional decision-making, in which they interpret the US Constitution accordingly whenever they confront specific cases that involve its provisions. There are at least three approaches to constitutional decision-making: originalism, living constitutionalism and minimalism. Each of the three approaches of constitutional decision-making have different ideological bases – originalism deems the meaning and intent of the framers of the US Constitution as important, living constitutionalism takes into consideration the various societal changes and minimalism emphasizes the importance of case-specific interpretations, being perhaps the most moderate approach. While originalism and living constitutionalism typically favor the conservatives and liberals, respectively, minimalism can suit either polar points of the political spectrum of the US, so long as it undertakes constitutional decision-making on a case-to-case basis. This paper seeks to address why minimalism stands out as the best approach to constitutional decision-making compared to originalism and living constitutionalism, taking cues from the landmark ideas published by Cass Sunstein in his book, Radicals in Robes, as well as supporting ideas from the book of Judge Harvie Wilkinson entitled Cosmic Constitutional Theory. Practicalities arising from the differences between contemporary society and that of the framers of the US Constitution, alongside the reasonable application of living constitutionalism, makes minimalism the best approach to constitutional decision-making. Furthermore, minimalists do not need to address larger issues in constitutional law in adjudication, as they focus instead on resolving the case based on its own merits, thus accounting for its emphasis on moderation.
Sunstein has long been an ardent subscriber of the minimalist approach to constitutional decision-making, as he has emphasized in writing Radicals in Robes, which has since served as his detailed treatise on minimalism. As an approach to constitutional decision-making, minimalism does not advocate the use of a specific theory when it comes to interpretation, as it emphasizes on the importance of deciding cases one at a time. Minimalism avoids “taking stands on the biggest and most contested questions of constitutional law,” which means that in deciding a case, minimalists do not seek to affect other related cases that may tackle the same fundamental questions. Instead, minimalists decide on cases modestly using “incompletely theorized agreements,” which in turn leaves fundamental questions with no answers and generates, in turn, outcomes reasonably harmonized and appealing to people who hold multiple subscriptions to interpretation theories. In interpreting the US Constitution, minimalists do not regard it as one that is stuck in the time when it was created and ratified, unlike originalists who argue that interpreting the US constitution must focus on what they think the meanings and intentions of the framers are. At the same time, however, minimalists distinguish themselves from living constitutionalists by moderately practicing judicial review without leading to outcomes that may deviate from “traditions and practices” founded on the US Constitution. In that regard, it is important to note that minimalists may either hold conservative or liberal beliefs, and that minimalism itself is not an interpretation theory in itself that leads to particular sets of results, unlike originalists who usually uphold conservatism or living constitutionalists who promote liberalism. “Narrow, incremental decisions” tend to be the outcome of cases decided by minimalists, who prefer to resolve only the given problems instead of fundamental questions that may also affect other problems in other cases not within their ambit.
Minimalism, as emphasized by Sunstein, goes against other approaches to constitutional decision-making, most notably originalism and living constitutionalism. Originalism, which Sunstein alternatively dubbed as fundamentalism, practices a methodology where the intentions and meanings held by the US Constitution are largely material to constitutional decision-making. Yet, originalism is also used in constitutional decision-making that leads to outcomes that are radically conservative, even to the extent of going outside the intentions and meanings of the framers of the US Constitution, when the need arises. It is in the foregoing characteristics of originalists where they, according to Sunstein in their alternative term, are described as either false fundamentalists or faint-hearted fundamentalists. False fundamentalists pertain to originalists who deviate from originalism by deviating from originalism when agendas on radical conservatism calls for it. Faint-hearted fundamentalists are originalists who adhere to the doctrine of stare decisis, which recognizes the use of cases as laws by using them as precedents in deciding relevant cases. Originalism is ideally supposed not to adhere to stare decisis, for it is typically used in common law, not civil law as in the case of the US, jurisdictions. Also, originalists see stare decisis as a point of tension in which its application on specific cases conflicts to what originalists would deem as the intentions and meanings of the framers of the US Constitution. Sunstein opposes originalism – given all its forms as discussed, in constitutional decision-making since it leads to “badincoherent, self-defeating” results.
Living constitutionalism, as noted by Sunstein, evokes a liberal agenda supporting not what the framers of the US Constitution would have intended or meant, as held by its polar opposite originalism, but a manner of constitutional decision-making that seeks to generate the best meaning of the constitutional text under interpretation in given cases. In other words, when a living constitutionalist proceeds with constitutional decision-making on a case, he does so based on what he thinks is the best meaning of a provision of the US Constitution related to it. Another notable feature of living constitutionalist is their lack of due regard to judicial restraint, which Wilkinson, in Cosmic Constitutional Theory, has regard as “judicial hubris,” as it leads to “[lack of] humility, boldness over modesty, and intervention over restraint.” Sunstein assails what he sees, in the foregoing regard, as the excesses of living constitutionalism, as he upholds the moderation of minimalists as their trait that enables them to practice judicial restraint in constitutional decision-making. Furthermore, Wilkinson criticized living constitutionalism as “anti-democratic” as it “charges judges with the task of creating a better world,” which in turn leads them to treat judicial review as not only “the final constitutional word,” but also one that “give[s] them the only word.” Such, therefore, leads living constitutionalists to overlap the roles of the legislature, which is more knowledgeable in terms of deliberating on what society needs, and political institutions, which act on societal changes.
Although Sunstein has sought to provide thorough details on the interpretation theories used as approaches to constitutional decision-making, it is important to note that the distinctions are not always clear-cut. In other words, there are particular overlaps touching in between minimalism, originalism and living constitutionalism. For instance, Sunstein emphasized that originalists are very particular with the meanings and intentions of the framers of the US Constitution in deciding on cases, although living constitutionalists do that as well in their quest to get the best meaning of the text. Given the overlaps specified, it is important to determine interpretation theories based on what they do more than the other, note on what they solely do.
In supporting minimalism, Sunstein approaches the issue vehemently by rejecting both originalism and living constitutionalism to extents where he portrays both approaches as imprudent and impractical. The issue of stare decisis, for instance, is used by Sunstein against originalists, who are not supposed to abide by it under the premise that the US uses civil, not common, law, even though it is widely applicable in cases where past precedents hold coherencies to their attendant facts. For living constitutionalists, Sunstein asserts that their adherence to the text is reliant on the idea that the framers of the US Constitution may have broader ideas in mind, particularly in contentious issues such as rights, powers and protections. By saying that living constitutionalists ultimately desire for the implementation of their ideal interpretations of the US Constitution – the best out of the text, as many of them would assert, Sunstein presents a specific danger against the integrity of currently existing democratic values and institutions the US observes. In contextualizing the text to what is deemed the best meaning in deciding on cases, living constitutionalists consequently overlap the functions of Congress in determining laws, or institutions in identifying societal changes for their reports and policy recommendations. Considering that judicial review does not recognize that the wisdom of the judiciary are as coherent and similarly tuned to that of Congress and institutions, who tend to monitor society based on their functions as policymakers and policy recommenders, living constitutionalism becomes a rather discretionary approach to constitutional decision-making. Living constitutionalists pose perilous effects arising from the excessive freedom they practice on their part in using judicial review, in that the shortsightedness and lack of proper competency on matters otherwise formally dealt with by Congress and institutions by the judiciary can result to the destruction of democratic balance – an outcome Sunstein himself fears the most.
Minimalism, advocated by no less than Sunstein itself as the best approach to constitutional decision-making, hails its advantages from its purported prudence and practicality in deciding on cases one by one. Prudence comes from the responsible practice of two methods of interpretation practiced by originalists and living constitutionalists, respectively: using the meanings and intentions of the framers of the US Constitution and the best meaning of the text in relation to the present-day context. Minimalists would not go too far to explaining the text conservatively insofar as it violates currently-held principles normatively observed, as in the case of same-sex marriage and abortion. Obviously, the norms of the 18th century – the time when the framers of the US Constitution thrived, are definitely different from that of the 21st century – the minimalist would decide reasonably within the context of the case at hand, without going too conservative or liberal, as the case may be. Also, the minimalist would not care so much on addressing fundamental questions when the given case calls for it – he would address the case based on its merits and would apply stare decisis when proper. In short, the minimalist is not constrained within rigid schools of thought – its sense of moderation is uncompromising and does not show any inclination of political bias, unlike that of originalism and living constitutionalism.
Judge Richard Posner called for an approach to constitutional decision-making that is similar to minimalism – pragmatism. As the name itself states, pragmatism calls for a practical approach to constitutional decision-making wherein the case at hand, not any future instances, should only be the main focus. Posner believes that the judiciary produces homogenous value judgments, making it possible for judges adhering to pragmatism to provide decisions that would be agreeable enough to generate a consensus. Both originalism and living constitutionalism, according to Posner, “can neither secure restraint nor safeguard self-governance,” resonating the ideas of Sunstein who criticized both approaches as excessive. The practices of both originalists and living constitutionalists on constitutional decision-making, which are either restrictive or liberal, highlights the fact that the US Constitution is a document mainly characterized by ambiguity. In that case, it is important to take into consideration the fact that judges are left with significant room for discretion in interpreting the constitution. Wilkinson himself described that “constitutional theory would be a perpetually unfinished project,” no matter how pristine the approach is. Posner noted that it is virtually impossible to identify a “One True Theory” for interpreting the US Constitution, given that the irreconcilability of available approaches to interpretation theory alludes its very characteristic of ambiguity. Pragmatism, therefore, involves the careful consideration of the case at hand, through its context, in practicing both rule-based (originalism) and fact-based (living constitutionalism) adjudication.
Considering that the US Constitution is ambiguous in nature, it helps to emphasize on pragmatism as an approach to constitutional decision-making that, as Sunstein has mentioned in describing minimalism, prevents the excesses of originalism and living constitutionalism from attacking the moral fiber of democracy in adjudication. Foremost to the benefit of using pragmatism is its flexibility in adjudication, wherein the judges do not need to focus on the contextual ambiguities provided by a rigid reading of the US Constitution. Where the situation provides, the case may be decided constitutionally on its merits using its context, without risking interference with other government branches, most especially with the legislature, through deciding on related constitutional matters larger than the case itself. In short, the flexibility of pragmatism provides judges with ample room to practice adjudication without having to interrupt what other government branches ought to do.
Another benefit related to the use of pragmatism in constitutional decision-making relates to its recognition that the judiciary acts within specific limitations. Adjudication is recognizably a way of setting up precedents for future cases, wherein case law defined by stare decisis provides relative stability. As a major point of contention by originalists and living constitutionalists, stare decisis is one that pragmatists, or minimalists according to Sunstein, ought to deal with reasonably. By understanding that judges have inherent limitations, pragmatists recognize that the legislature is far more superior compared to them in terms of creating laws. The highly representative nature of legislating distances judges from what is really happening in society, hence making their roles as adjudicators interpretive at best. Therefore, understanding that adjudication must not impinge on the role of the legislature is something pragmatists closely adhere to.
Moreover, pragmatism promotes the value of honesty in adjudication, to the extent that its non-reliance on ideologies would not render defenses on whatever theoretical model they use in constitutional decision-making necessary. Candor, according to Posner, is a prime characteristic of pragmatists in issuing their decisions on cases, which are primarily moderate in nature. Sheer focus on the details of the case preclude pragmatists from addressing large-scale constitutional issues that may require inputs from various kinds of political agenda – as in the case of the (usually) conservative originalists and liberal living constitutionalists. Pragmatists do not need to grandstand in addressing cases before them, since they do not hold any defensive remarks on anything they say about constitutional decision-making. Rather, pragmatists simply practice candor in deciding on cases, which is natural in the absence of political agendas and discussions on large-scale constitutional issues.
Needless to say, the highly practical manner employed by minimalists or, within the terms employed by Posner, pragmatists, in deciding on cases makes their approach to constitutional decision-making very reasonable. Moderation is the essential virtue minimalism has as an advantage over originalism and living constitutionalism, considering that it does not complicate matters concerning the ambiguous nature of the US Constitution. Flexibility within given contexts provide minimalists the leverage in terms of providing a clearer understanding of the US Constitution, while making sure that judges remain attendant to their primary roles as interpreters. In that sense, minimalism does not afford judges with room for politicizing constitutional matters, which prevails as the result of originalism and living constitutionalism. By keeping judicial restraint at a particularly favorable level – one that involves the context at hand while reasonably interpreting the meanings and intentions of the framers of the US Constitution, minimalism prevent themselves from clashing with other government branches, most importantly the legislature. Given that, minimalism keeps adjudication fairly within the democratic context of the US Constitution, hence making it as the best approach to constitutional decision-making.
James E. Ryan, Does It Take A Theory? Originalism, Active Liberty, and Minimalism, Stanford Law Review, Volume 58, Issue 5, 2006, at 1623-1660.
Cass R. Sunstein, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America (2005).
Harvie Wilkinson, III, Cosmic Constitutional Theory: Why Americans are Losing Their Inalienable Eight to Self-Governance (2012).
Benjamin C. Zipursky, Minimalism, Perfectionism, and Common Law Constitutionalism: Reflections on Sunstein’s and Fleming’s Efforts to Find the Sweet Spot in Constitutional Theory, Fordham Law Review, Volume 75, Issue 6, 2007, at 2997-3012.