Joseph Postell thinks so:

He is a brilliant, intellectually honest legal thinker who understands better than most the history of our 20th-century movement towards activist government and away from founding principles. He tends to come up with creative solutions to legitimate public problems, rather than clinging to progressive orthodoxies. But he does not reach questions of core principles. If one wishes to explore the fundamental questions that define American politicscompeting conceptions of first principles such as liberty, equality, democracy, and the rule of lawone will be disappointed with Sunstein's arguments. His pragmatism is a convenient cover for effacing the foundational debates of our republic. Not only is he uninterested in debating these fundamental questions; by defining his own position as the pragmatic one, he seeks to end reasonable debate about our principles altogether.

The notion that American politics should be grounded in regular debates about first principles is arguably appealing in the abstract. Unfortunately the way those sorts of debates play out in practice make it difficult to wish for more of them. Take the Claremont Institute, where the above piece appears. Ostensibly dedicated to returning the United States to the principles of the Founding, it raises money by trading on nostalgia for the framers and Abraham Lincoln, but spent the Bush years as apologists for the Cheneyite view of foreign policy and executive power.

Isn't it understandable, if theoretically regrettable, that people like Sunstein lack interest in foundational debates? The available interlocutors in the conservative movement are so often difficult to take seriously.

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