Kerr on The Use of Cultural Authority in Constitutional Argument @GeorgetownLaw @VandLRev
Andrew Jensen Kerr, Georgetown University Law Center, is publishing The Use of Cultural Authority in Constitutional Argument in the Vanderbilt Law Review En Banc. Here is the abstract.
In this paper I reconcile the need for legal validity with the aspirations of popular constitutionalism, i.e. that the American people should be a source of authority as to the meaning of our Constitution. The Supreme Court has long relied on cultural practices to help it discern constitutional boundaries. However, I argue that because of the erosion of our institutional gatekeepers that the use of and citation to popular forms of constitutional authority is both harder to do but also more necessary. Intrepid scholars like Tom Donnelly have charted some of the ways that judges can marshal popular constitutional argumentation in their decision-making. This paper contributes to this project of how judges and lawyers can cite to popular authority more effectively. I introduce the concept of cultural authority and distinguish it from other forms of authority like social science. I then observe how citation to cultural authority can be used to illuminate the scope of our Constitution. My synthetic approach is informed by iconic Supreme Court cases as well as recent noteworthy cases related to rap music and graffiti art.
Download the article from SSRN at the link.