Tuesday, October 14, 2008

Hrezo on Burgess, The Founding Fathers, Pop Culture, and Constitutional Law

Mary L. Dudziak

Margaret S. Hrezo has an interesting review in the new issue of the Law and Politics Book Review. She takes up The Founding Fathers, Pop Culture, and Constitutional Law: Who's Your Daddy? by Susan Burgess (Ashgate Publishing Company, 2008). In the book, Burgess treats constitutional scholarship as falling into particular genres. She compares Keith Whittington's work to the romance novel, and reads Ronald Dworkin as comedy, and Derrick Bell as tragedy. The result, for Hrezo, is "an immensely interesting and thought-provoking book that should be read by graduate students and scholars of constitutional law as much for its weaknesses as for its strengths."
The rest is below the fold.
In THE FOUNDING FATHERS, POP CULTURE, AND CONSTITUTIONAL LAW: WHO’S YOUR DADDY? (hereafter referred to as WHO’S YOUR DADDY?) Susan Burgess pulls together previously published work and two new pieces to make one overall argument: The golden chord between the legitimacy of judicial review and the intent of the framers must be snapped in order to move beyond the founding period’s brutality, patriarchalism, and lack of concern for the powerless in society. Burgess proposes “narrative analysis, popular culture, parody, and queer theory” as means of (1) democratizing constitutional debate; (2) providing a “more interesting and hip way of understanding and reconstituting politics;” and (3) pointing the way to resolving the generation-long impasse between judicial activism and judicial self-restraint. She pursues her goal by re-casting the constitutional theories of Keith Whittington, Ronald Dworkin, and Derrick Bell as romance, comedy, and tragedy. In the final two chapters on BUSH v. GORE and LAWRENCE v. TEXAS, Burgess relies on queer theory to highlight what she believes to be the instability and constitutional groundlessness of contemporary Supreme Court decision making. In so doing she has produced an immensely interesting and thought-provoking book that should be read by graduate students and scholars of constitutional law as much for its weaknesses as for its strengths.
Burgess analyzes Keith Whittington’s originalism from the perspective of a romance novel. Like a romance novel, she argues that Whittington’s work reads contemporary jurisprudence as engaged in an endless quest to overcome alienation from its “true self” (intent of the framers) and return to a “simpler time characterized by more authenticity and less corruption” (p.13). Activist courts play the role of the villain placing obstacles in the path of return. She provides a close textual reading of Whittington’s work to support her argument and her use of the romantic form to unearth additional layers of meaning succeeds. In Burgess’ view, the American founding is grounded in brutality and self-interest, in particular the brutality of slavery. Why then, she asks, should we honor its views of the meaning of the Constitution (even if they are ascertainable) over all others? Why should the nation continue to privilege a perspective that denigrated, marginalized, and ostracized significant parts of its political community? This may be an impertinent question, but it is one relevant to the discussion of constitutional interpretation....
In many ways this book successfully accomplishes the author’s goal of destabilizing the debate over constitutional interpretation. Burgess demonstrates her talents as a creative scholar who reads texts both carefully and innovatively. At this point in time, any realistic student of constitutional law would be hard-pressed to deny the futility of continuing the fight to “prove” the legitimacy of either judicial activism or judicial self-restraint. Perhaps that is why a number of scholars have treated normative and interpretive minimalism/maximalism separately. However, although this move results in a more nuanced and precise understanding of what actually is happening in judicial decision making, it does not address the problem of legitimacy. What is it that makes a judicial decision a legitimate exercise of authority? Burgess seems to understand this when she writes “The problem for Scalia, and for all parodists, is that revealing the groundlessness and illegitimacy of opponents’ arguments will typically also serve to destabilize other positions – including their own – if, as is usually the case, such positions are grounded at least in part, on the stability of constituent elements of the discourse, such as law, history, liberty, paternity, and so forth” (p.52). The problem for Burgess is that those, such as herself, who attempt totally to remove any stable ground for decision making face the same problem. Human beings are their stories, and old identities cannot be sloughed off like the snake’s skin and replaced with new ones. Further, activism and self-restraint are two ends of a continuum of interpretive and normative approaches to judicial [*901] decision making rather than two totally isolated and unrelated poles.
WHO’S YOUR DADDY? leaves the reader with a sense there is no legitimate foundation for authority. In this book, politics and law are about power and nothing else. This leaves no possible grounding for the tolerance and equality Burgess advocates....
Read the rest here. Cross-posted from the Legal History Blog.


I can't wait for the reactions of our resident originalists to find out "Who's Their Daddy?" Perhaps the Holy Grail of Constitution Interpretation, when discovered, will provide even more comic relief than has Susan Burgess, especially on "queer theory."

thank you for that Mary ...

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