In chapter 6 of The Tragedy of Religious Freedom, I discuss Cass Sunstein’s work on judicial minimalism and focus on a particular variation–Burkean minimalism. The method that I adopt for resolution of various religious liberty disputes draws on Burkean minimalism in several respects, but also departs from it in significant ways. My differences with Professor Sunstein are summed up in the aphorism, “Less Burkeanism, More Burke,” and the discussion in that chapter considers the ways in which Sunstein’s views about minimalism–which are pragmatically grounded–differ from my own–which are grounded in the reality of the complexity of political affairs, the conflict of human aspirations, and the irreducibility of human interests to any overarching theory. The method that I describe and defend is motivated, in part, by these complications.
Notwithstanding my admiration for judicial minimalism–and, indeed, for minimalism as a general, guiding ethic of political life–I am not the first to suppose that Sunstein’s attachment to it was always less than entirely secure. It was, as he himself acknowledged, strategic and instrumental. This is why I am somewhat disappointed, but not very surprised, to see that Sunstein has recently published Simpler: The Future of Government. Of course, the book is not about the judiciary; it describes Sunstein’s time at the head of OIRA. Its overall claims seem to rest on the assertion that government has become simpler during the last four years, that it will or ought to become simpler still, and that this is a wonderful thing. I have not read the book, and will of course defer to Professor Sunstein on the question whether the government has issued fewer regulations as a numerical matter. Government during the last four years does not seem so very much simpler to me than it was before, but I’m prepared to be persuaded otherwise. But apart from these descriptive issues, I have the distinct feeling that I will resist in particularly strong terms the normative claim–which seems to be made in the book–that the simplification of government is for the best. Indeed, it seems to me that a true minimalist would press just the opposite point: we are complex, and we need a government that can account for, and accommodate, that complexity. We don’t need simpler; we need more complicated.