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Constitutional Personae: Heroes, Soldiers, Minimalists, and Mutes (Inalienable Rights)
Constitutional Personae Heroes Soldiers Minimalists and Mutes - Inalienable Rights Author:Cass R. Sunstein American law and politics are dominated by four Constitutional Personae: Heroes, Soldiers, Minimalists, and Mutes. Heroes are willing to invoke the Constitution to invalidate state and federal legislation. Soldiers defer to the actions of the political branches. Minimalists favor small steps and only incremental change. Mutes prefer not to decid... more »e difficult questions.
In this groundbreaking book, eminent legal scholar Cass Sunstein argues that in every era, constitutional debates are, in fact, contests over the four Personae. In the 1960s, for example, liberals urged judges to be Heroes - striking down segregation, protecting the right to vote, creating rights for criminal defenders, and safeguarding privacy. Conservatives responded by asking judges to be Soldiers, upholding the decisions of the elected branches. In the current era, the sides have flipped, with liberals often celebrating Soldiers, who uphold the Affordable Care Act and other legislation, and conservatives embracing judicial Heroism. Throughout American history, many of the nation's greatest judges have been Minimalists, focused on particular problems, and avoiding big theories about freedom and equality. And some judges have insisted that silence is golden - that judges do best when they maintain a discrete silence, and do not address the largest issues of the day.
Whether the issue involves slavery, segregation, sex equality, same-sex marriage, the power of the President, health care, surveillance, or freedom of speech, American debates have turned on a choice among the four Personae - a choice that involves psychology and taste as well as high theory. Sunstein himself defends a form of Minimalism, urging that in general, that is the best approach in a self-governing society of free people. More broadly, he casts a new light on longstanding debates about constitutional interpretation and liberty under law, demonstrating that beneath all the rhetoric and the abstractions, each of the four Personae has enduring appeal.« less