Document Type

Article

Publication Date

2-21-2015

Abstract

In Naked Preferences and the Constitution and subsequent articles Professor Cass R Sunstein argues that the Constitution requires legislatures to pursue public values or common goods From this republican political theory Sunstein argues for a theory of judicial review when the Supreme Court reviews the constitutionality of a legislative act the Court should ensure that the act does not reflect a mere naked preference but rather reflects some public value or common good This essay questions the coherence of the concept of naked preferences by arguing that preferences are socially constructed not only through the political process as Sunstein suggests but also through the judicial process This essay describes Sunsteins theory of naked preferences and relates it to its historical roots the theories of Alexander Bickel and John Hart Ely It criticizes the concept of naked preferences as a basis for judicial review and then discusses Sunsteins reluctance to accept fully the insight that all preferences are social constructs It suggests how this insight may turn us towards a reconstructed vision of constitutional law By combining Sunsteins theory with Bickels theory pushed in a postmodern direction constitutional adjudication is recognized as a deliberative process or practice in which the Court participates with others in the construction and reconstruction of values culture and community The Courts task is interpretive requiring it simultaneously to search for and to create meaning

First Page

1335

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