Book Review: Of Snakes and Butterflies: A Reply
Columbia Law Review
The abstract idea of interpretation cannot support originalism or indeed any judgment about the competing (reasonable) approaches to the Constitution. Any such judgment must be defended on pragmatic grounds, which means that it must be attentive to consequences. In addition, the consequentialist judgments that support minimalism suggest that there are times and places in which minimalism is rightly abandoned. For example, broad rulings may well be justified when predictability calls for it; and the Supreme Court was right to refuse to accept minimalism in the late 1930s. While minimalism is generally the proper approach to "frontiers" issues in constitutional law, its own pragmatic foundations suggest that constitutional law should not be insistently or dogmatically minimalist.
Cass R. Sunstein, "Book Review: Of Snakes and Butterflies: A Reply," 106 Columbia Law Review 2234 (2006).