The legal academy is divided into priests, reformers, and heretics. Priests maintain that the Constitution compels government officials to make certain decisions. Conservative priests declare that the good text forbids affirmative action. Liberal priests champion the gospel of Roe v. Wade (1973). Reformers insist that citizens are free to choose how to apply such abstract constitutional commitments as human dignity and equality. Conservative reformers believe that Americans should choose to interpret the Constitution as significantly limiting the power of the national government. Liberal reformers hope to organize political movements that will interpret the equal protection clause as protecting same-sex marriage. Heretics would abandon basic constitutional practices. Some heretics call for the abolition of judicial review. Others insist that the entire Constitution should be shelved as soon as alternative arrangements can be made.

Cass Sunstein is a reforming priest. For more than a decade, he has preached about the virtues of judicial minimalism and pragmatism as an approach to constitutional problems. In A Constitution of Many Minds, he takes numerous rival sects to task for insisting that the Constitution ought to be interpreted in light of traditional practices, popular understandings, or global practice. Each ministry, Sunstein claims, too rigidly derives constitutional conclusions from what numerous people have thought about the Constitution. Traditionalists assume that it ought to be interpreted in light of what many people throughout history have thought about fundamental values. Popular constitutionalists maintain that it ought to be interpreted in light of what many people at present think about fundamental values. Cosmopolitans think that it ought to be interpreted in light of what many people throughout the world think about fundamental values.

These schools of constitutional thought fail to grasp constitutional truths for three related reasons. First, arguments from many minds often ignore contextual changes. The persons responsible for nineteenth-century gun policy did not address the distinctive problems of urban crime at the turn of the twenty-first century. Second, popular majorities are often motivated more by prejudice than reason. Bans on gay marriage may reflect instinctive revulsion toward homosexuality, rather than serious contemplation about matrimony. Third, cascades sometimes overcome reason. Numerous foreign countries may have prohibited hate speech largely because neighboring countries have banned hate speech. When contextual changes, prejudice, or cascades occur, Sunstein concludes, no good reason exists for interpreting the Constitution in light of what many minds think. Repeatedly, he emphasizes, constitutional reasoning requires a close cost/benefit assessment of alternatives, rather than blind deference to the past, to majorities, or to the rest of the world.

His book is vintage Sunstein, for better and worse. The prose is elegant. The reasoning is lucid. Among other gems is a powerful critique of originalism from the perspective of philosophical conservativism. No person committed to maintaining traditional practices, Sunstein correctly observes, would insist that more than 200 years of tradition be uprooted in light of revelation at one historical moment. Those who are not familiar with his previous works will find this one to be an excellent introduction to judicial minimalism, the view that Supreme Court justices should ordinarily decide cases narrowly and on the narrowest possible jurisprudential grounds. Given the importance of both democratic participation and the limits on human capacity, Sunstein reminds readers, courts in constitutional democracies should refrain from making broad pronouncements on matters of government powers or fundamental rights. Those more familiar with his previous writings are at numerous points likely to ask, “Why is this Sunstein book different from all other Sunstein books?” The answer may be too esoteric for too many readers. Having expounded the gospel of minimalism for more than a decade, little Sunstein says will surprise parishioners who have regularly attended his past sermons.

Members of rival faiths may complain that Sunstein has the priestly tendency to oversimplify the competition. A Constitution of Many Minds is written for a broad audience and evinces little interest in examining the subtleties of originalism, traditionalism, popular constitutionalism, or constitutional cosmopolitaniam. Consider the claim that constitutional decisions should be based on reason rather than prejudice. Sunstein points out that Edmund Burke did speak of the virtues of prejudice. Nevertheless, the distinction that eighteenth-century British empiricists drew between reason and prejudice was not that drawn at present. Moreover, the distinction is easier to state in theory than in practice. Sunstein is very confident that persons who think that homosexuality should be prohibited are prejudiced. Conservative Christians think that they have good reasons for their beliefs. The distinction between reason and prejudice is useless for resolving this impasse. The question is whether persons who would prohibit homosexual conduct have good reasons for their positions. That they are prejudiced is the conclusion of a constitutional argument, not one of the premises.

The Constitution in 2020 is dedicated to constitutional reform. Jack Balkin and Reva Siegel ask progressives what they would like the constitutional order to look like in a decade. The tone of their introduction is aspirational, rather than mandatory: “Instead of pretending that we can return the Constitution to an imagined past” (p. 2), Balkin and Siegel write, “we must assume responsibility for integrating past and present and redeem the promises of that great document in our time.” Each editor has a somewhat different approach to constitutional interpretation. Nevertheless, Balkin and Siegel both treat questions about rights and the judicial function as a political choice, not as a matter to which right answers can be deduced from the constitutional text or political philosophy. In their view, “[b]ecause ours is a democratic Constitution, the responsibility for articulating constitutional values often falls to the institutions of democracy and civil society” (p. 6).

Balkin and Siegel provide an excellent introduction to progressive constitutional thought at the turn of the twentieth century. This is the perfect book for the Obama voter who would like an accessible introduction to contemporary constitutional liberalism. Such stars of the legal Left as Robert Post, Frank Michelman, Mark Tushnet, Pamela Karlan, Larry Kramer, and Dawn Johnson provide brief, well-written introductions to their constitutional commitments. Readers will learn what Americans might expect from a center-left constitutional regime and the internal disputes that might splinter that regime. Unsurprisingly, contributors to this volume aspire to a constitutional regime that respects abortion rights, redistributes wealth, and is committed to an antisubordination rather than an anticlassification reading of the equal protection clause. More surprising, some essays call for progressives to rethink past commitments to judicial power and antipathy to federalism. The anthology also includes important essays on the place of comparative and international law in the constitutional regime, topics that are too often ignored in canonical constitutional writings on both the Left and Right.

The progressive contributors to The Constitution in 2020 are divided between priests or reformers. Some essays take a priestly tone. Robin West confidently proclaims that “the Equal Protection Clause is not about protecting people from the product of legislation,” but “is about how to use legislation to protect people from other evils” (p. 88). Frank Michelman speaks as a reformer. He asks, “What constitutive commitments regarding economic power would prevail in the United States if we could have our way?” (p. 46; original emphasis). These differences suggest that progressives (and conservatives) might benefit from a debate between priests and reformers. Perhaps progressives should insist that some combination of George Washington, James Madison, Abraham Lincoln, Franklin Roosevelt, and Martin Luther King irrevocably committed Americans to the constitutional vision of the political Left. Alternatively, progressive notions of constitutional democracy may entail that Americans have the power to choose or reject this volume as the best expression of our constitutional aspirations.

Reformers more self-consciously preach to the choir than priests. Sunstein is genuinely concerned with convincing all the constitutional faithful. The contributors to the edited volume speak only to the left side of the congregation. The contributions make no pretense that their arguments are intended to appeal to all reasoning constitutionalists. Balkin and Siegel are concerned with providing a constitutional framework for a political movement. As the Michelman essay points out, the question is what the “we” that constitutes the political Left hopes to achieve in the next decade. Still, Balkin and Siegel are almost certainly right that political movements rather than Article V amendments are the primary vehicle for constitutional change. For this reason, conservatives as well as liberals ought to pay serious attention to what might be a blueprint for the next progressive surge in American constitutional politics.

Sanford Levinson is a heretic. Our Undemocratic Constitution scolds both priests and reformers for working within an antiquated constitutional order. Worse, Levinson contends, progressive priests and reformers take as their text the least important passages in constitutional scripture. Sunstein, the contributors to the edited volume, and others devote their attention almost entirely to the Bill of Rights and Fourteenth Amendment. These passages, constitutional agnostics have proclaimed for years, cannot be interpreted to be consistent with almost any forms of constitutional faith. The rest of the Constitution is less fluid. We cannot interpret away state equality in the Senate or the Electoral College. Levinson details at length how these rigidities undermine the American political regime and often bias politics against crucial progressive reforms.

Levinson condemns conventional legal commentary for venerating a Constitution that is “both insufficiently democratic, in a country that professes to believe in democracy, and significantly dysfunctional, in terms of the quality of government that we receive” (p. 9). Numerous constitutional provisions have severe democratic failings. State equality in the Senate, a life-tenured judiciary, and Article V all inhibit popular majorities from getting their way. These policies typically lack compensating virtues. Constitutional provisions that do not promote majoritarian democracy, the author points out, rarely promote consensus democracy or privilege fundamental human rights. In Levinson's view, the combination of blind ancestor worship, political quiescence, and the supermajority rules demanded for constitutional amendment are the only contemporary foundations for the Electoral College and other ancient political rites.

Liberal priests and reformers should take the heretic seriously. Both Sunstein and the contributors to the edited volume are committed to securing greater economic equality in the United States. Our Undemocratic Constitution points out how the constitutional rules for staffing the national government and making laws may bias the regime against progressive redistribution. Progressive changes occur only when all three branches and most states are united on a course of action. Achieving that unity is difficult. By dividing powers among the different branches of the national government, and between states and the national government, the Constitution makes nearly impossible the sort of sustained commitment to economic equality necessary for the achievement of contemporary liberal aspirations. If poor people do not achieve salvation by 2020, Levinson realizes, the reason is more likely progressive ambitions thwarted by a political order with numerous veto points than a Bill of Rights interpreted to protect only negative liberties.

Heretics often speak greater truths than priests and reformers, but both priests and reformers supply adherents with better roadmaps. Sunstein, Balkin, and Siegel ask what is feasible under present constitutional conditions. Levinson calls for a constitutional convention that would take place entirely outside the present constitutional order and would not be afflicted with the ills of the present constitutional culture. If, however, Americans were presently capable of having a constitutional convention that did not reflect contemporary imbalances of economic and political power, perhaps our constitutional order would be sufficiently healthy so as not to need a constitutional convention.