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Wednesday, May 05, 2010

Frederick Douglass, Citizen Interpreter

Let me second Larry Solum's pick for Download of the Week this past weekend: Mariah Zeisberg's Frederick Douglass, Citizen Interpreter.  I especially admire two aspects of this paper.  1) It asks good and often overlooked questions about how the citizen's duty of constitutional interpretation may differ from the judge or other public official's duty of constitutional interpretation.  I'm not sure I agree with her conclusions, but I think it's a valuable area to explore.  2) It admirably treats a heroic figure from our constitutional past as a complicated figure whose theory of constitutional interpretation is as much instrumental as principled.  The usual tendency among constitutional theorists is to pick their heroes, and then strive to explain their approaches to constitutional interpretation in the most coherent and principled fashion -- to treat them as perfect and perfectionist constitutional theorists and essayists and not as constitutional politicians engaged in constitutional politics.  It often treats them as if they were writing in and for the seminar room and not from within the maelstrom of the politics of the day.  By contrast, present-day constitutional interpreters' imperfections, inconsistencies, and departures from principle are not only acknowledged but gloated about: consider Bruce Ackerman's un-PC description of our age as a generation of midgets.  I think we would sacrifice a little, but gain more, by treating the constitutional heroes of the past not as heroes, but as men and women with multiple goals beyond pure principle.  Zeisberg's paper is a valuable corrective to the tendency to build unrealistically perfectionist accounts of constitutional interpretation around heroic figures, and a useful attempt to answer the question what actual obligations citizens have in interpreting the Constitution.  I recommend it highly.  

Posted by Paul Horwitz on May 5, 2010 at 10:08 AM in Paul Horwitz | Permalink

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