The Partial Constitution

Sunstein argues that contemporary constitutional law treats existing distributions of entitlements as a neutral baseline, so that any government intervention to change them appears partisan or illegitimate [citation:1][citation:3]. But this baseline is not natural: as the New Deal recognized, property rights and market distributions are themselves products of legal rules [citation:12]. Treating them as neutral therefore privileges those who benefit from the current arrangement. Sunstein's critique is not that neutrality is impossible, but that the prevailing conception of neutrality is covertly substantive, favoring the status quo under the guise of impartiality.

Sunstein contends that judicial supremacy is a historical departure from the Framers' design, not its fulfillment. The Constitution often served as a catalyst for public deliberation about its general terms and aspirations, and this broader understanding of its role should be revived [citation:1][citation:3]. He challenges the doctrine of judicial supremacy and seeks to replace it with a conception of shared authority among the branches of government and the American people [citation:6]. The courts retain a role in securing the preconditions of deliberative democracy, but they are not the sole or primary interpreters of constitutional meaning.

In an especially striking argument, Sunstein claims that the Equal Protection Clause of the Fourteenth Amendment—not the right to privacy—protects a woman's right to choose abortion [citation:1][citation:3]. He connects this to the Constitution's historic commitment to public deliberation among political equals and argues that restrictions on abortion reflect the sexual and reproductive status quo, which is sometimes a locus of inequality [citation:12]. This reframing shifts the constitutional foundation of reproductive rights from individual privacy to equality and anti-subordination, a move that would later influence his work on the anticaste principle.

Reviewers in the William and Mary Law Review and Harvard Journal of Law & Public Policy argued that Sunstein's historical claims are constructed from distortions and exaggerations, suggesting that bad history is the homage he pays to originalism [citation:10]. Critics contend that he takes some elements of the Framers' complex philosophy while abandoning others, and that republican theory at the Founding was consistent with natural rights and pluralism, not opposed to them [citation:5][citation:10]. Sunstein's argument that the Framers sought to effectuate a 'deliberative democracy' above all else needs more historical support than he provides.

The Partial Constitution represents Sunstein's fullest exposition of a substantive vision of the Constitution as embodying deliberative democracy [citation:17]. His later work, beginning with One Case at a Time, shifted focus from the substantive commitments of the Constitution to a theory of judicial review, advocating minimalism—narrow rulings that leave fundamental questions open [citation:17]. Critics describe this as an 'incredible shrinking constitutional theory,' arguing that his earlier work was an outstanding grand theory with critical bite, while his minimalism blunts that bite and risks suggesting courts should wither away as vindicators of constitutional rights [citation:7][citation:17].

Sunstein identifies the New Deal as the moment when the 'outstanding conceptual break' occurred: the recognition that ownership rights and the status quo were products of government, not natural facts anterior to law [citation:12]. This insight is central to his critique of status quo neutrality, because it exposes the Lochner-era conception of neutrality as a substantive choice rather than a neutral baseline. Yet Sunstein is clear that the New Deal project has been realized only partially; his book analyzes contemporary constitutional problems in terms of the continued failure to resist the allure of the status quo baseline [citation:12].