{'fraction_non_alphanumeric': 0.017008797653958945, 'fraction_numerical': 0.0011730205278592375, 'mean_word_length': 5.741106719367589, 'pattern_counts': {'":': 0, '<': 0, '<?xml version=': 0, '>': 0, 'https://': 0, 'lorem ipsum': 0, 'www.': 0, 'xml': 0}, 'pii_count': 0, 'substrings_counts': 0, 'word_list_counts': {'cursed_substrings.json': 0, 'profanity_word_list.json': 0, 'sexual_word_list.json': 0, 'zh_pornsignals.json': 0}}
A Review of “A Constitution of Many Minds: Why the Founding Document Doesn't Mean What It Meant Before; Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law”

New works by distinguished scholars Cass R. Sunstein and Hadley Arkes invite reflection on the liberal versus conservative dialectic that has defined constitutional politics in the United States since the Progressive era. In A Constitution of Many Minds, Sunstein confirms his reputation as a thoughtful advocate of legal liberalism. In Constitutional Illusions and Anchoring Truths, Arkes with customary verve continues his work of recovering the “deeper principles of justice and moral understanding” that characterize the natural law. Sunstein, a “living constitutionalist” (and currently the chief of regulatory affairs in the Obama administration), seeks to secure modern liberal jurisprudence against the challenge of a conservative constitutional movement that has gained political support and academic recognition in the past three decades. Arkes, a pro-life advocate and co-author of the Born-Alive Infants Protection Act of 2002, defends the constitutionalism of the American Founding against the demoralizing effects of historicism and legal positivism. In their respective works Sunstein and Arkes engage in constitutional construction as distinguished from the activity of constitutional interpretation. This distinction, recognized at the Founding and in the nineteenth century, was abandoned with the rise of judicial activism in the twentieth century. In recent years it has been recovered with the emergence of a jurisprudence of original intent. Interpretation explains or discovers the meaning of the constitutional text. When linguistic vagueness or ambiguity renders the discovery of meaning inconclusive, construction determines or resolves the dispute over the meaning of the text. In a limited sense, construction creates constitutional meaning, drawing on sources of constitutional meaning in history, philosophy, ideology, and institutional structure. While Sunstein and Arkes are in no way oblivious to the requirements of interpretation, execution of their research agendas involves them in the activity of constitutional construction. Although Sunstein recognizes the symbolic value of the Constitution, his is a theoretical-constructive project that avoids interpretation at the level of particular judicial opinions. His goal is to reaffirm the progressiveness of American constitutional development, as determined by the judgment of the people concerning social facts and moral values and as registered through democratic lawmaking, as well as by Supreme Court decision making. Arkes engages in construction through investigation of disputed constitutional questions in judicial decisions. His commitment to the recovery of natural law jurisprudence aligns him on the conservative side of the ideological spectrum. His appeal to principles “beyond the Constitution,” however, and his conviction that written law cannot be interpreted without reference to the fundamental moral principles in which it is embedded, place his writings at a certain remove from the originalist position in professional legal scholarship. Arkes might be viewed as a philosophical originalist for whom the practice of constitutional interpretation is a matter of common sense reasoning from natural law principles.