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Cass Sunstein

Harvard Law School professor Cass Sunstein was appointed as an advisor for Barack Obama’s 2008 presidential campaign. Sunstein formerly taught at the University of Chicago Law School, where he was a colleague of Obama in the 1990s.

In his 2004 book The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need It More than Ever, Sunstein argues that citizens’ rights exist only to the extent that they are granted by the government.

Sunstein, who believes that the federal courts are dominated by conservatives, agrees with Supreme Court Justice Stephen Breyer’s assertion that the Constitution is a “living” document whose meanings and mandates change with the passage of time. Arguing against the doctrine of original intent, he supports Breyer’s contention that Justices should be less concerned with the clear and intended meaning of the words and phrases which the Framers wrote into the Constitution, than with determining how best to apply the Constitution’s supposed underlying principle, or Big Picture. In Breyer’s view (which Sunstein shares), this underlying principle was the Framers’ wish to grant future generations of Americans -- through the Supreme Court -- a measure of “active liberty,” or “the freedom to participate in government itself.” By this mechanism, Justices are, for all practical purposes, free to read whatever meanings they wish into the actual words of the Constitution.

Characterizing the Constitution as an outdated document whose 18th century perspective cannot adequately address 21st century problems, Breyer has explained: “The people who wrote the Constitution really didn’t think there would be an Internet. They thought the commerce clause would apply in the future but just to horses. They didn’t dream of automobiles; they didn’t dream of television; they didn’t dream of Internet, computers, all the things that affect our privacy, for example.” This is essentially the view of Cass Sunstein as well.

In his 2006 book The Audacity of Hope, Obama echoes the foregoing perspective, declaring that, as President, he would not appoint a strict constructionist to the Supreme Court:

“When we get in a tussle, we appeal to the Founding Fathers and the Constitution’s ratifiers to give direction. Some, like Justice Scalia, conclude that the original understanding must be followed and if we obey this rule, democracy is respected. Others, like Justice Breyer, insist that sometimes the original understanding can take you only so far -- that on the truly big arguments, we have to take context, history, and the practical outcomes of a decision into account. I have to side with Justice Breyer’s view of the Constitution -- that it is not a static but rather a living document and must be read in the context of an ever-changing world.”

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