by Cass Sunstein

I've just finished reading Barack Obama's new book, The Audacity of Hope. An immediate reaction is that whenever possible, Obama likes to propose solutions that do not reject the defining principles of those with whom he disagrees--and if he finds it necessary to reject those commitments, he does so in a way that shows unfailing respect for them, and that puts their beliefs and (perhaps above all) their motivations in the most favorable light. This is true on questions involving the economy, national security, immigration, the role of religion, abortion, affirmative action, and much more. In this way, Obama's book has the same feel as the central argument in John Rawls' Political Liberalism, with Rawls' emphasis on the value of achieving an "overlapping consensus" from people with diverse foundational beliefs. (Rawls hopes that the overlapping consensus can include Kantians, utilitarians, religious believers, atheists, agnostics, and many more, all of whom might be able to accept certain principles from their own foundations.) Rawls argues for an overlapping consensus in part on the ground that it enables people to live together, but more fundamentally because it embodies a principle of civic respect. Obama's approach is also reminiscent of that favored by "minimalist" judges, who are attracted to constitutional rulings that can attract support from diverse theoretical commitments. Chief Justice Roberts recently spoke enthusiastically about minimalist rulings, emphasizing the virtues of narrow decisions, and of refusing to enter into the most controversial territory when it is not necessary to do that. In my view, minimalism deserves to play a large role in the judicial domain. To say the least, judges are not experts on the largest issues in moral and political philosophy, and usually they do best to bracket those issues, if they can, in the interest of achieving less ambitious rulings. Is there a place for political minimalism too? Judge Learned Hand thought so, emphasizing that "the spirit of liberty is that spirit that is not too sure that it is right." But many people seem to think not. FDR, maybe our greatest president, was no minimalist. At crucial moments, he offered large and contentious claims, attacking the beliefs of (for example) those who were committed to laissez-faire and to isolationism. On the other hand, FDR was also committed to a principle of mutual respect. And consider these words from Lincoln's Second Inaugural: "With malice toward none, with charity for all, with firmness in the right as God gives us to see the right...." To say the least, the idea of political minimalism raises hard questions. What is clear is that Obama's approach, as reflected in his book, is entirely different from that taken, at crucial times, by the Bush administration--and now being taken by certain segments of the Democratic Party.