[no title]

Document Type


Publication Date

March 2008


legal fidelity, Frederick Douglass


The classical portrait of legal fidelity emphasizes that interpreters should sharply distinguish between their own judgments about morality or public policy, and their judgments about what the law requires. An instrumental approach to legal reasoning violates this basic obligation. This article argues that one of the constitutional heroes most exalted by constitutional theorists, Frederick Douglass, explicitly advocated the instrumental approach to interpretation that the classical concept of fidelity warns against. The implication of this argument is either that Douglass is not a constitutional hero, or that constitutional fidelity is not necessary for constitutional heroes. The argument that constitutional heroism does not require citizens to be faithful to the documents’ text requires a reworking of our basic categories of constitutional agency. I conclude by offering a few thoughts on how such a reworking might be achieved if Douglass’ status as a constitutional hero is to be maintained.