When last seen (at this blog), Cass Sunstein (CS) was offering a paean to FDR’s so-called Second Bill of Rights, namely the right to be cossetted from cradle to grave at the expense of others.
In a subsequent extrusion at The Volokh Conspiracy, CS talked about "constitutive commitments" -- better known as backdoor amendments to the Constitution. He opened with this:
It's standard to distinguish between constitutional requirements and mere policies. An appropriation for Head Start is a policy, which can be changed however Congress wishes; by contrast, the principle of free speech overrides whatever Congress seeks to do. But there's something important, rarely unnoticed, and in between -- much firmer than mere policies, but falling short of constitutional requirements. These are constitutive commitments. (We're still talking, or at least not not talking, about FDR's Second Bill of Rights.)
Constitutive commitments have a special place in the sense that they're widely accepted and can't be eliminated without a fundamental change in national understandings.... Current examples include the right to some kind of social security program; the right not to be fired by a private employer because of your skin color or your sex; the right to protection through some kind of antitrust law.
That's what happens when the constitution is amended by judicial acquiescence in legislative malfeasance. The national program of social security is blatantly unconstitutional and a ripoff of the first order (see here and here). The "right" not to be fired because of skin color or gender amounts to the "right" to hold a job regardless of competence. The "right" to the "protection" of anti-trust laws (when all we need is enforcement of laws against fraud, deception, and theft) amounts to a license for government to undermine the dynamism of free markets.
CS then reverts to his main theme, which is FDR's so-called Second Bill of Rights:
[FDR] wasn't proposing a formal constitutional change; he didn't want to alter a word of the founding document. He was proposing to identify a set of constitutive commitments. One possible advantage of that strategy is that it avoids a role for federal judges; another possible advantage is that it allows a lot of democratic debate, over time, about what the constitutive commitments specifically entail.
In other words, FDR wanted to amend the constitution by extra-constitutional means. Instead of avoiding a role for federal judges, however, FDR (and his successors) got their way with the help of a cowed and complaisant Supreme Court.
The past 90 years of governance in the U.S. have shown that leaving the application of constitutional principles to “democratic debate” is like leaving your liquor cabinet unlocked and your car keys on the table when your house is thronged with teen-agers.
Cass Sunstein is to the integrity of constitutional law as Pete Rose was to the integrity of baseball.