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The Partial Constitution. By Cass R. Sunstein. (Cambridge: Harvard University Press, 1991. x, 414 pp. $35.00, ISBN 0-674-65478-1.)
Americans live under a "partial Constitution" that cherishes the status quo rather than rising to new challenges in areas such as First Amendment rights. Judicial decisions that emphasize allegedly neutral principles, says Cass R. Sunstein, preserve legal rules that are in place when court challenges are brought. To modernize the legal system, judges should look to the original intent of the Bill of Rights: the preservation of a deliberative democracy, as advocated by James Madison, that allows Americans of all social and economic stations to participate in political life.
If the United States Supreme Court were to meet the challenges of a new generation, rather than continuing to institutionalize outmoded notions that...