Constitutional Personae
| Autor | Cass R. Sunstein |
| Cargo | Robert Walmsley University Professor, Harvard University. I am grateful to Bruce Ackerman, Jack Balkin, Martha Nussbaum, Eric Posner, Geoffrey Stone, David Strauss, and Mark Tushnet for exceedingly valuable comments on an earlier draft. Daniel Kanter also provided excellent comments and valuable research assistance |
| Páginas | 52-73 |
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Constitutional Personae
Cass R. Sunstein*
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.
I. Introduction
Debates over constitutional law familiarly explore competing theories of
interpretation. Should judges follow the original understanding of the Constitution,1 or
attempt to reinforce democratic processes,2 or offer moral readings?3 The differences
among competing theories are of course fundamental. But if we investigate the arc of
constitutional history, we will discover another set of differences. They involve
disparate Constitutional Personae – judicial roles and self-presentations that sharply
separate judges (as well as academic commentators). The leading Personae are Heroes,
Soldiers, Burkeans, and Mutes. Broadly speaking, Heroes are willing to invoke the
Constitution to invalidate state and federal legislation; Soldiers defer to the actions of
the political branches; Burkeans favor only incremental change; and Mutes prefer not to
decide difficult questions.
The four Personae4 help to define not only internal disputes on the Court but also
* Robert Walmsley University Professor, Harvard University. I am grateful to Bruce Ackerman, Jack
Balkin, Martha Nussbaum, Eric Posner, Geoffrey Stone, David Strauss, and Mark Tushnet for
exceedingly valuable comments on an earlier draft. D aniel Kanter also provided exc ellent commen ts
and valuable research assistance.
1 See ANTONIN SCALIA, A MATTER OF INTERPRETATION (1998).
2 See JOHN HART E LY, DEMO CRACY AN D DISTRUS T (1980). The core of the theory can be found
in United States v. Carolene Products, 304 U.S. 144, 153 n.4 (1938).
3 RONALD DWORKIN, FREEDOM’S LAW: THE MORAL READING OF THE AMERICAN
CONSTITUTION (1997).
4 Cicero also spoke of four personae, but in a quite different context and for quite different purposes.
See Christopher Gill, Personhood and Personality: The Four-Personae Theory in Cicero, De Officiis
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famous cases and entire eras of Supreme Court history. Countless past and present
constitutional disputes involve contests among Constitutional Personae. Consider, for
example, recent disputes over same-sex marriage,5 the Affordable Care Act,6 the Voting
Rights Act,7 and affirmative action.8 In all these disputes, and many more, each of the
four Personae play important roles (while also cutting across standard ideological and
methodological divisions).9 We can also identify periods of Supreme Court heroism,
soldiering, and Burkeanism (though not muteness), certainly with respect to particular
constitutional clauses, and sometimes with respect to the Court in general.
An understanding of the Personae cannot, of course, displace standard theories of
constitutional interpretation. On the contrary, the choice of Persona is dependent on the
selection of some such theory, certainly as a matter of logic. A particular theory (say,
originalism) might lead a judge to be heroic, soldierly, Burkean, or mute, as the
controversy and the occasion demand. I shall devote considerable attention to this point
and hence to the relationship between the Personae and competing constitutional
theories. Nonetheless, an understanding of the Personae provides a novel and
illuminating perspective on recurring constitutional debates (or so I shall attempt to
show).
It is important to emphasize that the Personae are both abstract and stylized, and
no real-world judge “is” one or another of them. To be sure, particular judges can be
associated with particular Personae, but any such association is best taken to mean only
that on especially prominent occasions, the judge has assumed that Persona, or that the
judge shows a tendency to adopt that Persona in the most important and challenging
cases. Over the course of a career or even a year, many real-world judges will adopt each
of the Personae. Some judges switch their persona from case to case frequently because
their preferred theory of interpretation calls for such switching; other judges have a more
or less consistent persona because their preferred theory calls for it; still other judges
change their stance for strategic or other reasons.
It is important to see that adoption of a Persona need not be opportunistic or
manipulative; it is generally an authentic reflection of the role that “falls out” of the
judge’s preferred theory of interpretation. Nonetheless, it cannot be denied that a judge
might adopt a Persona for strategic reasons. For example, a judge might prefer in the
abstract to be a Hero, but in light of relevant constraints (such as precedent, internal
dynamics on a multimember court, or anticipated public reaction), she might write as a
Burkean -- with the hope that the Burkean path might eventually produce the same
result that heroism would dictate. Muteness might also be strategic, a form of biding
one’s time until the time is right.10
I, 6 OXFO RD STU D. IN ANCIENT P HIL. 169 (1988).
5 United States v. Windsor, 133 S. Ct. 2675 (2013).
6 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).
7 Shelby County v. Holder, 133 S. Ct. 2612 (2013).
8 Fisher v. University of Texas, 133 S. Ct. 2411 (2013).
9 See below.
10 While the focus throughout is on American constitutional law, the four Personae can be found in
countless legal systems. For example, the Israel judge Aharon Barak is a well-known Hero, see
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