Constitutional Personae

23 Pages Posted: 10 Jul 2013 Last revised: 23 Sep 2013

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Date Written: September 23, 2013

Abstract

American constitutional law is dominated by four Constitutional Personae, who can be identified by their inclinations, their temperaments, their sensibilities, and their self-presentations. Indeed, many constitutional debates consist of stylized disagreements among the leading Personae: Heroes, Soldiers, Burkeans, and Mutes. Earl Warren is the iconic Hero; Oliver Wendell Holmes, Jr. is the iconic Soldier; Felix Frankfurter is the iconic Burkean; Alexander Bickel speaks for the Mute. At different times and places, and under different constitutional provisions, liberals and conservatives can be Heroes, Soldiers, Burkeans, or Mutes. While the appeal of one or another Persona undoubtedly has psychological and social sources, the choice of the appropriate Persona, in particular cases, should be a product of the proper theory of constitutional interpretation, which must in turn be chosen on the basis of pragmatic judgments about the magnitude and number of errors.

Keywords: Judicial review, same-sex marriage, Oliver Wendell Holmes, Originalism, Constitutional Personae

Suggested Citation

Sunstein, Cass R., Constitutional Personae (September 23, 2013). Available at SSRN: https://ssrn.com/abstract=2292027 or http://dx.doi.org/10.2139/ssrn.2292027

Cass R. Sunstein (Contact Author)

Harvard Law School ( email )

1575 Massachusetts Ave
Areeda Hall 225
Cambridge, MA 02138
United States
617-496-2291 (Phone)

Harvard University - Harvard Kennedy School (HKS) ( email )

79 John F. Kennedy Street
Cambridge, MA 02138
United States

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