Law & Economics Working Papers
In constitutional law, first-order perfectionism represents an effort to cast the Constitution’s ideals in the best constructive light. Ronald Dworkin's conception of law as "integrity" can be seen as a form of first-order perfectionism. By contrast, second-order perfectionism attempts to set out an account of constitutional adjudication that is sensitive to the fallibility of federal judges. Originalism is best defended as a form of second-order perfectionism; the same can be said of Thayerism, captured in the view that judges should uphold statutes unless they are unquestionably violative of the Constitution. Minimalism, which calls for narrow, incompletely theorized judgments, is another form of second-order perfectionism. Whether first-order perfectionism is best, and what kind of second-order perfectionism might be chosen instead, cannot be decided without an appreciation of the characteristics of relevant institutions. Under certain institutional assumptions, originalism is preferable; under other assumptions, first-order perfectionism, Thayerism, or minimalism may be the right approach. Freestanding normative assessments are also inescapable. For example, originalism cannot be evaluated without some kind of assessment of the results that it would produce. These claims have implications for first-order perfectionism of the sort defended by Dworkin and more recently by James Fleming.
Cass R. Sunstein, "Second-Order Perfectionism" (John M. Olin Program in Law and Economics Working Paper No. 319, 2006).