Columbia University Law Professor Michael Dorf uses the Dumbledore flap as a teachable moment:

These principles may seem obvious enough when considering the relation of a fiction writer’s intentions to her text, but they are highly contentious when it comes to legal documents. In the balance of this column, I will explain why James Madison is no more of an authority on the meaning of the U.S. Constitution, than J.K. Rowling is on Dumbledore’s sexual orientation.

Interesting! I recommend the remainder of this fairly short essay. Here’s the conclusion:

But now we must ask a further question: In tacitly consenting to the Constitution, do contemporary Americans accept the Constitution as they understand it, or as a small fraction of the white male population understood it 218 years ago? As I noted in a 2002 column, most Americans have only a vague idea of what the Constitution even says. How likely is it that they accept the original public meaning of the text they barely know?

If these considerations render all forms of originalism problematic, they do not point clearly towards any particular method of constitutional interpretation. One could think that the Constitution’s meaning evolves with changing public mores but still worry that judges are not best situated to express those evolving mores.

In other words, even if some of Us the People think that the Fourteenth Amendment’s Equal Protection Clause is best read in 2007 to permit Dumbledore to marry whomever he chooses, regardless of sex, the Supreme Court might nonetheless decide not to recognize his right to do so until it sees a clearer social consensus on the point. The one thing the Court should not say, however, is that Dumbledore cannot marry a man in 2007 simply because same-sex marriage was not allowed in 1868, when the Fourteenth Amendment was ratified.

Comments

  1. #1 David D.G.
    October 24, 2007

    At first glance here, it looks to me like he’s comparing apples and oranges — or, at best, using apples to make a metaphorical commentary on oranges. Either way, I don’t see the point.

    The Constitution had an original viewpoint, yes, but part of that viewpoint included provisions for it to transform as needed over time. It was intended to be a “living” document, a dynamic tool, not just a passive piece of literature. A work of fiction is not the same thing at all, and for anyone to gainsay the author’s stated position on its contents is the height of absurdity, no matter when it was written. Unless stated otherwise (e.g., Bob Asprin’s shared Thieves’ World milieu), it is not intended to be dynamic, but is strictly limited to the author’s view.

    The only reason for people to be able to claim some authority on the matter is when the author is dead and has not left any known comments concerning certain matters — therein, the literary critic is free to speculate to his heart’s content. But when the author can speak, and has spoken, quite clearly to clarify character aspects BEHIND the story’s events (and thus not included “in the canon” so to speak), it seems to me that there is no recourse whatsoever to refute that. It is what it is, and that is whatever the author says it is, period.

    There’s a line in “The Producers” that is used humorously there, but I think it applies sensibly here: “You are the audience! I am the author! I outrank you!”

    ~David D.G.

  2. #2 Blake Stacey
    October 24, 2007

    In the balance of this column, I will explain why James Madison is no more of an authority on the meaning of the U.S. Constitution, than J.K. Rowling is on Dumbledore’s sexual orientation.

    Um, balderdash?

    The Constitution is a plan for governing a nation. It was legitimized by the consent of the people who were to be governed. That legitimacy covers the Constitution and its amendments, but it does not extend to Jefferson’s letters or Washington’s farewell address. We could have given additional documents the status of “law of the land”, but we didn’t go through the procedure.

    By contrast, interpreting a fictional work has nothing whatsoever to do with a social contract. It’s all about how incoming information changes the mental representation you have of the story. Whether you let Conan Doyle’s woo-woo spiritualism color your perception of Sherlock Holmes, for example, is entirely up to you.

  3. #3 Boronx
    October 24, 2007

    “The Producers” is an excellent answer to Rowling. She wrote the thing, but she doesn’t get to control it.

    How many times have you heard a writer answer the question: “Which of your books is your favorite?”. The answer is hardly ever their greatest work, usually a much lesser one. Is it so surprising that an audience of millions of readers might find more in the book, or might reach a sounder a opinion about a book than one measly author who is only human?

  4. #4 Petra
    November 4, 2007

    That’s probably the weirdest way to compare completely different documents.

    If we have to speak of ancient documents for comparison, why should maybe rather compare The Lord of the Rings or Jekyll and Hyde – other fictional works – to Harry Potter. What I am trying to say is that it doesn’t matter how we interpret these works today because they simply don’t do politics. They have no meaning for law or for our everyday life and they are property of the author, dead or not. They were written for the enjoyment of their time and maybe times to come, not to set rules for centuries. Of course you’ll go back and wonder what Tolkien thought writing LotR in his time, rather than wonder what the interpretation of that work is today.

    Of course you don’t do that with the Constitution. Why? Because the Constitution has to evolve with time. No fictional work has to. Even if our views change and our opinions towards certain texts change, in fiction you’ll always view them in a historic context.

  5. #5 Nathaniel
    November 6, 2007

    It’s just an advertising ploy. The author wants to make a point about the constitution and how it is interpreted. The point is completely valid but probably wouldn’t be read by anyone because it is a boring topic in general. The American population doesn’t really care that much about such things. So, in an effort to make the article attractive to the average reader, they throw in a bit of popular news! Everyone is trying to figure out this whole gay dumbledoor thing. They managed to capitalize on this and get some readers. In fact, I ready this very article for the same reason, dumbledoor in the title.

    Beyond that, they’ve got a good point. If people want to ban same-sex marriage, then the argument “that is not what the original framers of the constitution intended marriage to be.” is not a very good one. The framers of the constitution didn’t ever intend the freedom of speech to be extended to online blogs. Perhaps they should be banned? It just doesn’t make sense. Also, I have to give them, and you, some kudos for capitalizing on this gay dumbledoor craze. Hey, it gets you readers… perhaps I should do one.

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