A Constitution of Many Minds: Why the Founding Document Doesn't Mean What It Meant Before

Sunstein argues that all three approaches to constitutional interpretation rely on a shared epistemic premise: better decisions result when many points of view are considered. Traditionalism invokes the many minds of the past — longstanding social practices as a repository of accumulated wisdom. Populism invokes the many minds of the present — contemporary public opinion as a check on judicial overreach. Cosmopolitanism invokes the many minds of other nations — foreign constitutional experience as a source of insight. Sunstein's contribution is to expose this common structure and then ask when each version of the many-minds argument is actually persuasive .

Sunstein holds, with some allowance for traditionalism, that judges should not accede simply because many people think the Constitution should be interpreted in a certain way . His resistance stems from the fact that the many-minds argument, while often valid, depends on conditions that are frequently absent: independence of judgment, diversity of information, and absence of cascades or polarization. When opinion leaders dominate or when sequential influence undermines independence, the aggregation of many minds can produce worse rather than better outcomes. Sunstein therefore treats traditionalism, populism, and cosmopolitanism as context-dependent resources rather than general rules .

Sunstein's 'Burkean minimalism' treats traditionalism as grounding constitutional meaning in longstanding social practices, not necessarily in the views of the founding generation . This distinguishes it from originalism, which looks to the text and intent of the Framers. For Sunstein, the relevant many minds are those embedded in practices that have endured across time, not the specific minds of 1787. He explores this position in chapters on Burkean minimalism, rationalism versus Burkeanism, and due process traditionalism, showing how traditionalist reasoning actually operates in constitutional law .

Cosmopolitanism holds that the meaning of the Constitution turns partly on what other nations do — that foreign courts' treatment of constitutional questions can inform American interpretation . Sunstein treats this as a third version of the many-minds argument, but it is the most contested. Critics argue that foreign law lacks democratic legitimacy in the American context and that borrowing from other jurisdictions is selective and superficial. Sunstein's approach is characteristically nuanced: he does not endorse wholesale borrowing but asks when foreign experience provides genuinely useful information that American judges would otherwise lack .

A significant critique comes from Spiekermann and Goodin, who assess Sunstein's claims through the lens of the Condorcet Jury Theorem . They argue that the many-minds argument is more fragile than Sunstein acknowledges: sequential influence among courts (in traditionalism) and opinion leaders (in populism) undermine the independence assumptions on which the epistemic benefits of aggregation depend. Ferejohn's review in the Harvard Law Review raises a related concern: both Sunstein and Vermeule focus too much on one kind of informational problem — aggregation — and too little on others, such as incentives to generate and transmit information .

The introduction is titled 'Jefferson's Revenge,' invoking Jefferson's view that the Constitution should be reinterpreted by each generation and that the earth belongs to the living . Sunstein uses this as a framing device for the book's central question: how should constitutional meaning adapt across time without collapsing into pure majoritarianism or frozen originalism? Jefferson's position represents the populist pole — the claim that contemporary majorities should have a strong voice in constitutional meaning. The book explores whether and when Jefferson's revenge is justified, and what institutional arrangements can capture its insights without its dangers.