Cass R. Sunstein makes a good case that it would be unwise to scrapthe current Constitution and start from scratch with a secondconstitutional convention ("It Could Be Worse," October 16). Buthow could he write his long and learned piece without oncementioning Edmund Burke? What would The New Republic's famouscontributing editor (and Burkophile) Alexander Bickel have thoughtof that?
cass r. sunstein responds:
Many thanks to Roger Clegg, who is 100 percent right to say thatBurke was an unacknowledged inspiration for my argument. Burkeemphasized that traditions are built up by many people over longperiods of time and that those who attempt to evaluate traditions,with their merely "private stock" of reason, often know much lessthan traditions do. Burke usually leaves Americans cold, but thegrowth of U.S. law, including constitutional law, has often been aBurkean practice, rejecting abstract reason in favor of small stepsbased on actual experience. An example is the growth inpresidential power over time. Here, changes in constitutionalunderstandings came not mostly from courts, but, instead, from alarge number of practices to which the executive and legislativebranches agreed. A perhaps more controversial example is theconstitutional ban on most forms of sex discrimination, which didnot arrive as a bolt from the blue. Instead, it was a product of aseries of narrow decisions, in which the court built on socialpractices and traditions as they evolved over time. On both theleft and the right, federal judges have occasionally been toocavalier with traditions. Some conservative judges want to wieldprinciples of "inviolate property rights" and "color-blindness" asall-purpose weapons against long-standing practices. Some liberaljudges have done the same thing in arguing for a flat ban oncapital punishment and in endorsing expansive privacy rights. And,in the current period, it is more than a little interesting to seehow many politicians, of both political parties, seem willing towield abstract theories as weapons against traditions. There is noquestion that the argument against large-scale constitutional changeis best made with close reference to Burke.
Leon Wieseltier is quite right ("The Shahid," October 23). Tony Judtis something of a fraud. He presents himself as a victim of Jewishcensorship, but, when the censorship comes from Muslims threateningto kill those with whom they disagree, he doesn't have a problem.Speaking in mid-October at an NYU forum on the limits of tolerance,he told Ayaan Hirsi Ali, the Somali-born Dutch woman who has beenguarded around the clock due to Islamist death threats, that the"emphasis on free speech is something of a self-indulgence." In thestandard language of Leninism, he argued that the question is amatter of "who is asserting this right," who is doing what to whom."What's gained," he asked, "by the freedom to insult Islam?" In hisview, only the right can benefit. For Judt, it seems that, as with1930s Stalinists, the only question worth asking is "which side areyou on?" Where Islam is involved, Judt supports the virtues ofself-censorship and what the Eastern Europeans under communismcalled "preemptive obedience."
Professor of History
The Cooper Union for Science and Art
New York, New York
Wieseltier administered a fine lashing to Judt in his column. I amsurprised, however, that nobody has yet noticed the realintellectual absurdity of Judt, a lavishly adulated expert onEuropean history, calling Abraham Foxman, of all people, a"fascist." This suggests that Judt has no understanding of fascism,while preening himself as an expert in an area where real fascism isa major topic. Secondly, when the Polish consulate in New Yorkcanceled his talk on the Israel lobby, Judt complained that "thepublic space for nonconforming opinion in this country is closingdown. ... This is, or used to be, the United States of America."One should have expected that an expert on European history wouldrealize that the Polish consulate is not a "public space," butrather a diplomatic office of a foreign nation. Indeed, the Polishconsulate, technically, is in the territory of the Polish Republic.The authorities of the Polish Republic, exercising prerogativesdating back millennia in diplomatic history, decided that Judt'sviews should not be aired at an official facility of their country.Why does he not complain to Warsaw?