Academic

Zeisberg on Frederick Douglass & Constitutional Fidelity

By Lawrence Solum

Mariah Zeisberg (University of Michigan at Ann Arbor - Department of Political Science) has posted Frederick Douglass, Citizen Interpreter on SSRN. Here is the abstract:

The classical portrait of constitutional fidelity emphasizes that interpreters should sharply distinguish between their own judgments of political morality and their judgments about what the Constitution requires. An instrumental approach to constitutional reasoning is held to violate this basic obligation. This piece argues that one of the most exalted citizens of constitutional theory, Frederick Douglass, advocated the instrumental approach to interpretation that the classical concept of fidelity warns against. Many constitutional theorists would be unwilling to accept the conclusion that he was a faithless interpreter. Sharing the intuition that Douglass was an outstanding constitutional citizen, I begin to develop an account of a faithful interpretive practice for citizens that can defend these apparent subversions.

Behind all interpretive accounts of the Constitution lies an implicit understanding of who is doing the interpreting. Most interpretive theories are addressed to judges, and the substance that they offer reflects this distinctive positioning of the interpreter. For example, the major works of constitutional interpretation by Dworkin, Ely, Bork, Posner, Tribe, and so forth are almost entirely preoccupied by questions that judges face. These theories devote a great deal of energy to making sure that the mistakes judges may make do not bear unfavorably on the democratic process. They are heavily informed by the distinctive institutional positioning of the judiciary. For example, if they were offering interpretive theories for legislatures, the content of their theories would presumably be less affected by a concern for the countermajoritarian difficulty.

But the office of ?citizen? is distinctive from the office of judge, and consent theory tells us why. The office of citizen is privileged in consent theory. Although this office is constitutionally codified (the Constitution specifies and constructs the political identity of the ?voter?, for example), the position of that office is distinctive because the authority of the document as a whole is believed to rest on its public ratification. Judges and legislators owe their political and legal authority to the Constitution under which they serve. Furthermore, they have a representational responsibility which circumscribes the interpretive space that might otherwise be available to them. But citizens do not owe their political authority to the document and citizens are not charged with representing others. It is the Constitution that owes its authority to the consent of the people. The people?s political freedom regarding whether or not to consent is absolute. Perhaps under certain conditions they face a similar freedom in the question of how they might consent.

This relationship might make it more justifiable for citizens to engage in politically-motivated and deeply strategic relationships to the text that they have not chosen. Perhaps a faithful constitutional practice is precisely one that allows for a flawed constitutional order to be redeemed, that makes the document consent-worthy even as we understand that actual legal consent is almost never legally relevant to the lives of actual citizens or to the life of the polity. In that case, in situations of outrageous injustice, it might be that the moral appeal of the vision itself?and the moral appeal of the institutional relationships that vision implies-- is properly the primary interpretive constraint that citizens and moral reformers face.

The ongoing success of the constitutional project cannot be separated from the moral relationships that that constitutional order manages to sustain. If constitutional success is evaluated according to a constitution?s ongoing contribution to the effort for political justice, then a constitutional practice in which citizens understand themselves as relatively unfettered from the interpretive positions of past generations might allow for a more successful constitutional practice than one in which dead-hand concerns weighed heavily on all interpreters all the time. Under this possible conception of fidelity, judges, legislators, and presidents would owe deference to the public understandings of the text when ratified and when amended (as spelled out in the classical conception of fidelity), but the primary deference of citizens would be to the moral appeal of the interpretive position itself. The work of citizens would be not to represent the positions of others but rather to generate public conceptions of the document that are more praiseworthy, from a justice point of view, than the conceptions that they received. There are significant problems associated with this way forwards. But it may allow us to maintain Douglass? status as a preeminent constitutional citizen while remaining clear-eyed about the significant theoretical challenges of his interpretive approach.

Full post as published by Legal Theory Blog on April 26, 2010 (boomark / email).