Law & Economics Working Papers
Burkean minimalism has long played an important role in constitutional law. Like other judicial minimalists, Burkeans believe in rulings that are at once narrow and theoretically unambitious; what Burkeans add is an insistence on respect for traditional practices and an intense distrust of those who would renovate social practices by reference to moral or political reasoning of their own. An understanding of the uses and limits of Burkean minimalism helps to illuminate a number of current debates, including those involving substantive due process, the Establishment Clause, and the power of the President to protect national security. Burkean minimalists oppose, and are opposed, by three groups: originalists, who want to recover the original understanding of the Constitution; rationalist minimalists, who favor small steps but who are often critical of traditions and established practices; and perfectionists, both liberal and conservative, who want to read the Constitution in a way that fits with the most attractive political ideals. No approach to constitutional law makes sense in every imaginable world. The argument for Burkean minimalism is strongest in domains in which three assumptions hold: originalism would produce intolerable results; established traditions are generally just, adaptive to social needs, or at least acceptable; and the theory-building capacities of the federal judiciary are sharply limited. Burkean minimalists face a number of unresolved dilemmas, above all involving the appropriately Burkean response to non- Burkean, or anti-Burkean, precedents.
Cass R. Sunstein, "Burkean Minimalism" (John M. Olin Program in Law and Economics Working Paper No. 273, 2006).