The lure of large numbers

Abstract

A CONSTITUTION OF MANY MINDS. By Cass R. Sunstein. Princeton, N.J.: Princeton Univ. Press. 2009. Pp. ix, 225. $27.95. LAW AND THE LIMITS OF REASON. By Adrian Vermeule. New York: Oxford Univ. Press. 2009. Pp. 1, 211. $55.00. INTRODUCTION Professors Cass Sunstein and Adrian Vermeule have written provocative books (1) that ask important questions about how the U.S. constitutional system should regulate itself and, specifically, how much deference courts should show to other branches or People Themselves (2) when interpreting the Constitution. This issue of deference has been warmly debated with the recent reinvigoration of various theories of popular constitutionalism that generally criticize judges for claiming a disproportionate share of interpretive authority. (3) The innovation of the present authors is to introduce and apply research from collective choice theory and behavioral economics to inquire into the relative capacities of courts and other institutions to decide and manage fundamental constitutional issues. The thrust of both books is simple: the authors generally agree that judges do in practice frequently defer to many minds--to congressional majorities past or present, to executive branch policies, to judicial precedents, or to the public opinion--on important constitutional issues. And each author gives reasons to believe that, in some circumstances, such deference is justified partly because the other branches are likely to make better-informed decisions than one or a few sitting judges could. The authors differ greatly, however, on how and when deference is owed to other branches or to the people. According to what the authors call arguments, the popular branches may sometimes enjoy an informational advantage over the courts, insofar as they take account of the judgments of a wide range of people in making decisions; this advantage, other things being equal, may lead them to produce better decisions. Part of this advantage can be traced to their sheer size compared to the courts. Part is also due to the diversity of their memberships compared to the judiciary. And part is due to the assumption that the other branches will have organized themselves fairly effectively to gather and process information, permitting them to take full advantage of their size and diversity. Moreover, if numerical superiority translates into informational advantages, the authors suggest no offsetting informational advantages held by judges. They offer no reasons to think that, when these conditions hold, precedent-based adjudication could plausibly draw on and distill the wisdom of the multitude of contemporaries or of past generations in a way that could offset the contemporary informational advantages of the popular branches. Sunstein and Vermeule draw on similar analytical resources and arguments, including recent work in behavioral economics and cognitive sciences, but most prominently on Condorcet's classic work on majority rule as an information aggregation device. These streams of research share what I would call one of the two basic intuitions about social cooperation: that imperfectly rational and fairly unintelligent individuals may, in some circumstances, be able to combine to make collectively intelligent decisions. (4) Each also draws on claims, based on related arguments, made for (and against) Edmund Burke's and F.A. Hayek's views about the (informational) wisdom of traditions and of the common law. (5) Burke's and Hayek's views are complicated and difficult to work out precisely--Burke's position does not seem to be an obvious case of a many-minds argument at all; and Hayek relies on selection arguments that are contextually fragile and contested. I shall therefore concern myself with the authors' use of Condorcetian arguments to make institutional comparisons, and leave their treatment of Burkean and Hayekian grounds for judicial restraint for another day. …