Perhaps the most obvious lesson of Cass Sunstein’s newest book is that constitutional interpretation is a much more complex matter than is often thought. Typically, we place the different approaches to constitutional interpretation into neatly separate and self-contained categories, such as originalists and those who believe in a living constitution. But as Cass Sunstein demonstrates in A Constitution of Many Minds, constitutional interpretation is anything but a neatly-defined endeavor.
Sunstein presents and analyzes three different approaches to constitutional interpretation: traditionalism, populism, and cosmopolitanism. Not only do these three models reflect somewhat newly articulated theories of constitutional interpretation, but Sunstein also takes a new approach in analyzing each of these models. According to Sunstein, each of the three models rest in their own way on a “many minds” argument, which asserts that if many people have settled on a common practice or proposition, the courts should pay careful attention to that practice or proposition. A form of this “many minds” argument underlies each model, even though each model differs significantly from the other. Sunstein then analyzes each of the differing models of constitutional interpretation by scrutinizing the particular form of the “many minds” argument that underlies each of the different models.