Posted: 26 Nov 2003
This article, written as part of the symposium on the Scholarship of Sanford Levinson, explores how Professor Levinson's theory of constitutional interpretation should intersect with the professional responsibility of a lawyer during representation on a constitutional issue, i.e., "What is the professional responsibility a lawyer has to the Constitution?" The thesis of the piece is that lawyers need to construct an ethical framework for themselves that helps to explain and guide behavior in their role as client representatives who are also public citizens with a sworn fealty to the Constitution - a framework, in other words, that helps them understand and define their role as constructors of Constitutional meaning.
In exploring this question, I use the lens of Professor Levinson's protestant constitutionalism, rather than the lens of professional responsibility law. The former lens focuses attention upon the relationship between the actor (lawyer in the role of client representative) and the Constitution, rather than simply upon the relationship between the lawyer and the client, which has come to be the hallmark of exploring issues about professional responsibility from the perspective of the law of lawyering. Using Professor Levinson's approach permits the inquiry to avoid some of the problems of self-interest and self-protection that have accreted into the law of lawyering.
The article shows how the theory of protestant constitutionalism requires an examination of the role that lawyers do and should play in constitutional interpretation. It then addresses the challenge of defining the lawyer's role, in light of the role of client representation. After presenting a sample case raising many of the difficult issues involved in addressing this question, the article proceeds to examine the lawyer's role by mining Professor Levinson's scholarship for the features of a well-executed lawyerly role. The article proposes that there are three models one can use to describe the lawyer's role: priest (the lawyer as the one who controls interpretation, by applying Supreme Court pronouncements to the client's problem), knowing instrument (the client as in complete control of the interpretation to be advanced, even if the lawyer sincerely disagrees with the constitutionality of that interpretation) and minister (the lawyer as initiator of a constitutional conversation with the client, with both maintaining responsibility for interpreting the constitution). It argues for adopting the minister role as that most consistent with protestant constitutionalism and good professional responsibility theory. Finally, the article proposes a simple rubric to help guide lawyers in executing their dual responsibility to client and Constitution.
Keywords: constitutional law, constitutional interpretation, professional responsibility, lawyers
JEL Classification: K1
Suggested Citation: Suggested Citation
Reilly, Elizabeth A., Priest, Minister or 'Knowing Instrument': The Lawyer's Role in Constructing Constitutional Meaning. Tulsa Law Journal, Vol. 38, p. 669, 2003. Available at SSRN: https://ssrn.com/abstract=471882