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Constitutional Televangelizing

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2 Responses

  1. Shag from Brookline says:

    The commentators and Jack Balkin’s responses have been great. I hope to read “Redemption” fairly soon, as I have long admired his writings, including at his Balkinization Blog. And I look forward, if my aging eyes last, to reading Jack’s “Living Originalism” when it is available.

    I also admire Kurt Lash’s writings. I just finished his July 2011 article “‘Resolution VI’: The Virginia Plan and Authority to Resolve ‘Collection Action Problems’ Under Article I, Section 8″ which challenges Jack Balkin’s views. Kurt Lash presents a well reasoned argument. I would expect at some point a response from Jack Balkin. While Kurt Lash’s article does not specifically address Jack Balkin’s “Redemption” and only passingly references his “Living Originalism,” it would be difficult not relating his article to them. I’m concerned that perhaps Jack Balkin may have locked himself into a corner with his recent adoption of originalism. Perhaps some of the non-originalists out there will be heard from.

  2. A.J. Sutter says:

    May I demur that it’s precisely the evangelical character of your otherwise very interesting argument that I find hard to accept. Your book struck me as a blend of, to use your analogy, religious studies and theology. I didn’t have any trouble with your religious studies use of religious themes when talking about how the Constitution is regarded in American culture. But your theological uses of religious metaphors and tent-revival rhetorical tropes — such as when you talk about “what attitude members of the public must have toward the constitutional project in order for it to be legitimate” @1 (emphasis added), and the anaphoretic passage about fidelity @127 — make my neck get stiffer than usual when evangelists come ringing the doorbell. Not least because there are some things I put higher than the US Constitution, and I think the insistent, theological use of religious imagery in this context actually encourages a sort of idolatry.

    But I suggest your religious images also create some difficulties for your case that are more rhetorical than halachic. And more’s the pity, because some of your nicer insights would do just fine without them.

    1. For starters, the use of the word “faith”. It has (at least) a double sense: trust (which I’ll call faith_1), and religious faith (faith_2). A lot of the technique of the book seems to consist in blurring this distinction. Here’s a passage from p. 2 (emphasis added):

    The legitimacy of our Constitution depends, I believe, on our faith in the constitutional project and its future trajectory. Fidelity to the Constitution requires faith in the Constitution. And our faith in the Constitution depends, in turn, on the story that we tell ourselves about our country, about our constitutional project, and about our place within them.

    This passage reads perfectly well with the word “trust” substituting for each incidence of “faith”. Not so this sentence from p. 11:

    The danger in constitutional faith is constitutional idolatry.

    This only makes sense if read as faith_2. But to read the earlier passage retrospectively with faith_2 instead of faith_1 renders it clearly false, specifically with faith_2 as predicate of “depends” and “requires” (I’m happy to serve as the falsifying instance). Your deliberate blurring of these two connotations makes it harder to have faith(_1) in your overall narrative.

    (BTW elsewhere you say, “Lawyers are merchants of faith: they trade on faith, they trade in faith” (@101). This is very grand, but what, for example, transactional lawyers such as I do all comes down to faith_1, not faith_2. And usually it’s the trust between the parties to the deal that counts most, followed perhaps by trust that if someone screws up they will get sued.)

    2. In your last chapter, you list four advantages for framework originalism: (i) focusing on the Constitution’s text and principles, (ii) bridging lay and professional understandings of the Constitution, (iii) providing a dissenter’s theory, offering leverage against the status quo, and (iv) offering a way for individuals and groups to pledge faith in the Constitution’s restoration and redemption (@234). Had you stopped after the first three, it would have been enough. Each of them is an independent and appealing justification; you don’t really need to drag in the problematic idea of “redemption” to make it work.

    3. And here are a couple of reasons why the notion of “redemption” is problematic:

    (a) First of all, the metaphor has an obvious flaw pertinent to its target domain: in the ultimate theological redemption, the Temple will be rebuilt and the priests will come back. Not exactly what “protestant” (or rabbinic) Constitutionalists should hope for.

    (b) The deeper flaw is that redemption contains the idea of progress (e.g. @26). Even though you occasionally refer to setbacks, you seem to assume a certain ratchet-like quality to progress, so that once some civil right has been found in the Constitution it won’t ever get lost again: “We cannot be sure that in 2080 people will not look at the constitutional system of 2010 just as we now view the Constitution in 1940 — when Jim Crow was still powerful, and women were without rights” (@130).

    Of course you’re right. But what if the Constitutional system of 2080 looks like the system in 1940? And what if the people in 2080 feel that such a state of affairs constitutes “redemption” of the Constitutional promises as they see them? We already see hints of this evolutionary process, with the erosion of some Warren-era precedents. Who’s to say some Court in the future won’t think that a “penumbra” is as bogus as “tripartite citizenship,” and throw out the right to privacy (perhaps persuaded by an amicus brief from the Google Professor of Law at some ivied institution)? In every generation there’s not only a different Constitution-in-practice, but a different Constitution-as-aspiration. Some generation with a practical situation that might horrify us might nonetheless feel it’s hit the jackpot, “redemption”-wise.

    (c) Probably, though, the happiness of those yahoos in 2080 will be short-lived, as new controversies and new injustices arise, and practice and aspiration slip out of phase with each other. Which just goes to show that although the metaphors of redemption and progress may appeal to some pious Americans, it’s probably not a good model of what actually happens. While one can only hope there may be some progress in the sense you point out when you say that we don’t have any problems today as big as slavery (e.g. @132, 134), that progress might be fitful, incremental or without any obvious goal, and most of the future may involve our oscillating back and forth on many issues. (I’m not convinced, BTW, that America’s descent into plutocracy, mass unemployment and loss of hope necessarily is more benign than slavery was in 1840, or, more conservatively, that it will stay so indefinitely.)

    There are many other metaphors one might use to suggest the ideals, commitment and continuous effort necessary for constitutional culture — but based more on images of, say, maintenance and enjoyment, not progress. For example, a marriage requires ideals, commitment and continuous effort, and can be very rewarding, but without any expectation that one’s spouse is going to eventually approximate one’s idealized view of him or her when you first met. A garden requires constant tending, weeds need to be pulled, some things die, other things bloom beautifully for a while and may even yield fruit for many years, etc. — but there isn’t any finality. The game of Whack-a-mole reminds us that the price of democracy is eternal vigilance; and for sake of a democratic society, lawyers, civil society and others may feel very committed to whacking ‘em when they see ‘em.

    There may even be a “parable of the plankton” one can base on the so-called paradox of the plankton in marine biology. Although classical ecological theory predicts that when many species compete for the same nutrients within the same patch of ocean there should ultimately be an “equilibrium” with one winner, instead one finds continuing diversity of species, and no equilibrium. Could that have some features in common with a healthy democracy? I’m not sure how far the analogy can be pushed, but if I had to put my money on comparing democracy to a natural phenomenon based on many contending communities, versus a Biblical allegory with a very ambivalent ending (see (a), supra), I think I’d put my money on nature.

    That’s not to say that Americans will find plankton, gardens or moles even remotely as persuasive as a Biblical allegory. Instrumentally, Bible stories will win. But at least for this reader, the redemption story arc falls within the categories of being not true, exaggerating, or leaving out important and relevant details, as you set out at pp. 26-27. And being told that I “must” approach the Constitution with something akin to religious faith really, really bugs me. Much else in the book has a great deal of merit; I hope you can find a way to work a free exercise clause into your future expositions of this theme.

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