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Fordham University School of Law




What is the question of fidelity a question about? The topic of our Symposium, "Fidelity in Constitutional Theory," raises two fundamental questions: Fidelity to what? and What is fidelity? The short answer to the first-fidelity to the Constitution-poses a further question: What is the Constitution? For example, does the Fourteenth Amendment embody abstract moral principles or enact relatively concrete historical rules? And does the Constitution presuppose a political theory of majoritarian democracy or one of constitutional democracy? The short answer to the second-being faithful to the Constitution in interpreting it-leads to another question: How should the Constitution be interpreted?' Does faithfulness to the Fourteenth Amendment require recourse to political theory to elaborate general moral concepts or prohibit it and instead require historical research to discover relatively specific original understanding? And does the quest for fidelity in interpreting the Constitution exhort us to make it the best it can be or forbid us to do so in favor of enforcing an imperfect Constitution?2



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