Minimalism, Perfectionism, and Common Law Constitutionalism : Reflections on Sunstein's and Fleming's Efforts to Find the Sweet Spot in Constitutional Theory

Cass Sunstein's quot;Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for Americaquot; and James Fleming's quot;Securing Constitutional Democracy: The Case of Autonomy,quot; share a great deal: they reflect a left liberal communitarian vision of what the U.S. Constitution would best be interpreted to say, and yet they both struggle to find a sweet spot in constitutional theory, rejecting the extremes around them. Sunstein's minimalism is meant to strike a balance between conservative fundamentalism and liberal perfectionism; Fleming's constitutional constructivism aims to strike a balance between the process-based approaches favored by thinkers like Ely and the untethered moralism of a natural law theorist. I argue that neither succeeds: Sunstein because he relies in the end upon a very thin form of pragmatism, that leaves legitimacy out of the picture; Fleming, because he is unduly optimistic about the possibility of cabining the domain of rights claims. The essay concludes by proposing a quot;sweet spotquot; of its own; common law constitutionalism. Adapting Sunstein's minimalism to a sort of incrementalism, and using well-rooted exceptions to ground developing individual rights, common law constitutionalism finds the sweet spot between Sunstain and Fleming