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The Use of Cultural Authority in Constitutional Argument

Posted by on Friday, July 30, 2021 in En Banc, Responses, Volume 74.

Andrew Jensen Kerr | 74 Vand. L. Rev. En Banc 215 (2021) |

In this paper I reconcile the need for legal validity with the aspirations of popular constitutionalism, that is 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, with the erosion of our institutional gatekeepers, the use and citation to popular forms of constitutional authority is paradoxically harder to do but more necessary. Intrepid scholars like Tom Donnelly have charted some of the ways that judges can marshal popular constitutional argumentation in their decisionmaking. 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 reveal 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. 

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Andrew Jensen Kerr