Desperately Seeking Certainty

In this appendix to Desperately Seeking Certainty, the authors imagine what the constitutional scholars examined in their book would have to say about a latke recipe.

"A primer for lay readers, Desperately Seeking Certainty is provocative and penetrating even for those on the inside of the constitutional theory game. Farber and Sherry have given us a wonderful book."—Barry Friedman, New York University School of Law

"Desperately Seeking Certainty is at its best on the attack; the authors' criticisms are clear, sensitive and usually fair."—Garrett Epps, New York Times Book Review

The Constitutional Foundations of Shirley Edelman's Latkes

by Daniel A. Farber and Suzanna Sherry, authors of Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations

Shirley Edelman's Latkes

5 large potatoes, peeled
1 large onion
2 eggs
1/4 to 1/3 cup matzo meal
1 tsp salt
1/4 tsp pepper
1 tsp baking powder
vegetable oil for frying

Grate potatoes and onion. Traditionalists insist on grating by hand, noting that a little skin and blood gives latkes their unique flavor. Pragmatists—including the septuagenarian author of this recipe—have converted to using the shredder blade on a food processor. Add eggs and mix well. Add matzo meal, salt, pepper, and baking powder, and mix well. (There can be no certainty on the appropriate amount of matzo meal: every potato, every onion, and every egg is different. Cooking, like constitutional law, is a messy business.) Heat oil—again, judgment and experience must substitute for black-letter rules on amounts—in a frying pan. Add the potato mixture approximately one tablespoon at a time. Cook pancakes until golden brown; turn and cook until other side is golden.

Makes 30-40 latkes, enough for 2-10 people. Serve with applesauce, sour cream, or plain.

Note: Like the Constitution, latkes keep well with a few adjustments. To make them in advance: undercook the latkes very slightly. Drain, then cool on sheets of wax paper. Freeze on the wax paper, to keep latkes separate. When frozen, they can be thrown together in a plastic bag or container and replaced in the freezer. Reheat frozen latkes in a 350-degree oven for 10-15 minutes.

A Little Light Entertainment on a Serious Subject

How would our scholars deal with this recipe? In asking this question, we obviously don't mean to minimize the significance of the theories we discuss, merely to add a little seasoning to the discussion. If they religiously applied their own theories to cooking (which, of course, they all have too much common sense to do), the results might be as follows:

Robert Bork, faced with the uncertain amount of oil, would conclude that the directions for frying were an "ink blot" and would serve the latkes raw or refuse to make them at all.

Antonin Scalia would conclude that latkes were a liberal distortion of the recipe as originally understood, so he would make matzo (the unleavened bread described in Exodus) instead.

Richard Epstein would condemn the directions as an unwarranted infringement on his liberty. He would make up his own recipe on the basis of modern economic analysis (although unlike his own constitution, we suspect his recipe for latkes would be quite tasty).

Akhil Amar would carefully deconstruct the text. Noting that the recipe calls for "baking powder," he would cook the latkes in the oven. Since the potatoes are referred to as "peeled" but no similar instruction is given for the other ingredients, he might also include the onion peel and egg shells.

Bruce Ackerman would ask whether the Diaspora should be considered to have altered the recipe so that it should be based on cornmeal rather than potatoes. He would end up with quite serviceable tortillas, and call them latkes.

Ronald Dworkin would consult the great philosophers such as Maimonides, who, of course, would give little guidance on latkes. So, like Epstein, he would construct his own recipe—which, though also probably tasty, would not taste anything like Epstein's.

Of course, these are caricatures—but if you make allowances for exaggeration, they give you the flavor of the individual theories.

Copyright notice: Excerpted from pages 169-70 of Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations by Daniel A. Farber and Suzanna Sherry, published by the University of Chicago Press. ©2002 by The University of Chicago. All rights reserved. This text may be used and shared in accordance with the fair-use provisions of U.S. copyright law, and it may be archived and redistributed in electronic form, provided that this entire notice, including copyright information, is carried and provided that the University of Chicago Press is notified and no fee is charged for access. Archiving, redistribution, or republication of this text on other terms, in any medium, requires the consent of the University of Chicago Press.

Daniel A. Farber and Suzanna Sherry
Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations
©2002, 224 pages
Cloth $25.00 ISBN: 0-226-23808-3
Paper $17.00 ISBN: 0-226-23809-1

For information on purchasing the book—from bookstores or here online—please go to the webpage for Desperately Seeking Certainty.

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