By Seth Barrett Tillman. 114 Penn St. L. Rev. 391.
Legal academics and the public are fascinated by both constitutional text and the processes by which it is interpreted. The precise role for legal academics in the interpretation of such charters is controverted. Doctrine and case law as established by the courts remain the core of academic legal discourse. Case law is, after all, the object about which doctrine is based, built, and extended. But the interpretation of constitutional text through case law comes with costs—it seems to lack democratic legitimacy, and where unconnected to text and history, it has a tendency to fence out (even the well-educated) public. On the other hand, when legal academics shift to text and history, their work gains populist credentials, but, at that point, the legal academic risks his privileged position. For the legal academic has no monopoly, or even highly developed expertise, with regard to textual exegesis or the best use of historical materials . . . [keep reading]
[1]. For a wonderful example of this genre (and its inherent limits), see Christopher C. Lund, Equal Liberty and Religious Exemptions: A Response to Eisgruber and Sager, 77 Tenn. L. Rev. (forthcoming 2010), available at http://ssrn.com/abstract=1263514 (last visited July 18, 2009). In an extensive discussion of First Amendment case law, doctrine, and legal scholarship, the Constitution’s text is nowhere quoted. It is not even cited. This is not a criticism of Professor Lund’s paper. I am just noting that such scholarship takes on the flavor of inside baseball.