Material Foundations of Constitutional Redemption
posted by Frank Pasquale
In Constitutional Redemption, Jack Balkin addresses Sanford Levinson’s distinction between constitutional “catholics,” who look for a “central source of interpretive authority,” and “protestants,” who “might recognize the authority of the political branches, social movements, and even individual citizens to interpret the Constitution.” Balkin says the two positions are ultimately symbiotic, since “dissensus about constitutional values—–the most characteristic feature of constituional Protestantism—is the great engine of constitutional change, shaping even that most ‘catholic’ of institutions, the United States Supreme Court” (97).
Balkin thus celebrates dissensus. But in the past few weeks we have witnessed a game of constitutional hardball that threatened not only our economy, but also our national security. Balkin-the-blogger has acted as one of the most responsible constitutional commentators in the midst of the debt ceiling crisis. He has calmly explained that presidential authority to keep the public debt valid is a far more tame innovation than the unitary executive prerogatives entertained during the rule of Bush fils. But Balkin-the-author entertains the possibility throughout Constitutional Redemption that the Tea Party Jacobins who brought the nation to the brink could be a social movement with the same validity and moral force as, say, the Civil Rights Movement, or the New Deal.
A Balkin divided against himself cannot stand. A theory of constitutional redemption needs a developed account of legitimate social movements. Otherwise, it can fall victim to the same shifting-goalpost-centrism that poisons our media and public life. Balkin has recognized as much in his work praising an infrastructure for free speech and condemning our bloated national surveillance state. And this is where constitutional Catholicism, in a different sense than the one employed by Balkin and Levinson, can improve our law, and our self-understanding as citizens.
Comparisons between religious and constitutional faith are rich sources of inspiration for legal scholars. Balkin has tended to emphasize the visible institutional dimensions of Catholic faith. But the Church is held together, not only by the Vatican, but by a common sensibility and theology of incarnation—–an interpretation of the human experience of being embodied. The fact that our minds are (in) a certain fleshly form is not incidental to faith. In the words of the Nicene Creed, “For us and for our salvation, [Jesus] came down from heaven, was incarnate of the Holy Spirit and the Virgin Mary and became truly human.” The Word becomes Flesh, not merely because God needs to talk down to humans, but because humans are made in the image and likeness of God.
The Catholic Church has long struggled to articulate exactly what incarnation means for the faith, often in opposition to various heresies (including Gnosticism, Pelagianism, and Jansenism). Against heretics who believed humanity either hopelessly corrupted or capable of attaining God-like perfection on earth, the Church insisted on the Thomistic synthesis of reason and revelation, body and spirit, and simultaneous being and becoming worthy of God’s love.
For our purposes, this Aristotelian tradition has one central consequence: what Nussbaum calls the fragility of goodness. Human flourishing depends on certain material and social conditions. Catholic Social Thought reflects these ideas, directly condemning gaping inequalities, exploitation, and environmental devastation. There are faiths that ignore these conditions, seeking only to improve the souls of the faithful, or to reconcile them to earthly misery. Catholicism is not one of them.
Catholic Social Thought addresses economic conditions because the life of the soul is intricately intertwined with the life of the body. Workers can’t get to mass or confession if they have to toil seven days a week. It’s hard to be a good husband or wife if you’re broke or broken by a martinetish manager. The sharper-edged social relations are, the more sins the successful will have to confess. And if you truly believe that the “last shall be first,” “devil take the hindmost” economic policies are anathema.
The Constitutional Consequences of Economics
Just as there are faith traditions that profess indifference to the material conditions of the faithful, so too are there constitutional theories that are purely proceduralist. For a libertarian, the US constitution properly understood could legitimately frame a social order where the top 1% own 90% of the wealth (rather than the mere 34% or so they hold today). Large portions of the citizenry could want for food, shelter, or health care. As long as the state follows the “simple rules” that someone like Richard Epstein articulates, distributive questions are solely answered by the market. Indeed, state intervention to preserve some baseline of welfare would be offensively “pattern-oriented” (as Nozick would put it) or “communist” (as Rush Limbaugh would say). Groups like Tea Party Patriots see this outcome as not merely wise policy, but as a constitutional imperative.
Balkin notes that there is no similar movement among the “present generation of liberals,” who “have largely given up thinking that the protection of the poor is ‘not yet’ in the Constitution,” and instead believe it is “not in there at all” (135). This lacuna creates a serious imbalance in a nation where Constitutional arguments are critical to public discourse about values. Recalling Anthony Kronman’s parallels between the state and the person (in The Lost Lawyer), Balkin provocatively casts this constitution-talk (a variant of Glendon’s “rights talk“?) as an involuntary and harmful tic:
Many of us are engaged in practices where reference to the Constitution is a standard method of discussing what is just and unjust. People who immerse themselves in the Constitution and its traditions often bring the concepts of that tradition to bear in their other moral and political judgments. In that way the tools of constitutional thinking infect our attitudes toward basic questions of social justice and polital philosophy. We find that when we discuss these questions, we turn to the language of the Constitution as second nature. It is a language that warps and limits our imagination about justice. Yet it is a language we cling to because it has become the only way we know how to be just, like a neurotic who finds himself replaying a damaging script in all his relationships because it is the only way he knows how to love and be loved. (128)
Balkin then goes on to make a both nuanced and inspiring argument for including “conditions of poverty and denial of equal opportunity” in the Constitution’s “‘modest’ agenda, especially if the proper institution to remedy [them] is not the Supreme Court but Congress[.]”
But why is Congress the only proper institution here? Why aren’t all three branches called upon to address these issues? If the Supreme Court can abandon precedent on campaign finance, equal protection, and voting rights cases in service of the libertarian constitutional vision, why can’t it flip San Antonio v. Rodriguez and declare education a fundamental right? How can democracy survive without some baseline of education for the citizenry? As Justice Marshall (one of 4 dissenting justices in Rodriguez) stated:
The majority’s decision represents an abrupt departure from the mainstream of recent state and federal court decisions concerning the unconstitutionality of state educational financing schemes dependent upon taxable local wealth. More unfortunately, though, the majority’s holding can only be seen as a retreat from our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens.
The Court does this despite the absence of any substantial justification for a scheme which arbitrarily channels educational resources in accordance with the fortuity of the amount of taxable wealth within each district. In my judgment, the right of every American to an equal start in life, so far as the provision of a state service as important as education is concerned, is far too vital to permit state discrimination on grounds as tenuous as those presented by this record.
If some miracle occurred and today’s Supreme Court adopted that argument tomorrow and overturned Rodriguez, would that be any more problematic than Lawrence‘s overturning of Bowers v. Hardwick?
The executive branch could also interpret laws in accordance with the kind of egalitarian constitutionalism Balkin contemplates here. In a society where economic gains are so overwhelming diverted to the wealthiest, an “inequality impact statement” should complement more traditional cost benefit analysis. We can no longer assume that a rising tide will lift all boats. Executive action, in areas ranging from health care reform implementation to surveillance, needs to reflect the interests of all Americans, not simply those capable of buying lobbyists in Washington. Most importantly, strong executive action to secure food, housing, and health care for Americans should be seen as legitimate as strong executive action to intervene in foreign conflicts. I am sure I am not alone in my disappointment at President Obama’s extraordinary legal characterizations of the Libyan non-war, and his sudden turn to hermeneutical abstinence when constitutional debates on his debt ceiling and bailout powers emerged.
Substantive Commitments are at the Core of Religious and Constitutional Traditions
Balkin engages in religious imagery in Constitutional Redemption because “constitutional traditions have much in common with religious traditions,” giving us a way of talking about “the commitments of a people in a creedal tradition spanning many years, involving the work of many generations . . . and organized around the maintenance and interpretation of an ancient creedal text” (7). Balkin’s gloss on Lincoln’s characterization of the Declaration of Independence as the “golden apple in the silver frame” of the Constitution (18) is an especially apt application of the religious metaphor. For however important institutions are to any particular faith, the faith itself has core substantive values that provide a real check on the agenda of any particular set of institutional leaders. Everyone in the US deserves a chance to truly pursue happiness. When powerful institutions compromise that pursuit, it is time to re-examine them.
The great religious traditions are based on sacred texts far longer and more detailed than the US constitution. The traditions themselves have thousands of years of history, replete with instructive tales of saints and sinners. They are both more solid and more ossified than America’s constitutional tradition. But they are always open to movements for renewal and awakening. Jack Balkin’s work extends that tradition of renewal to constitutional traditions. He calls today’s would be constitutional redeemers to step back from the tinkering, the case crunching, the desperate finger-in-the-dike scrambling that is a mainstay of today’s progressive con law. He proposes a broader vision.
“By having a story about the direction of the country, and believing in that story, people can help make the story true over time” (4). We can tell a story about an America that becomes the City upon a Hill envisioned by John Winthrop, preserving a baseline of education, housing, health care, and food for its citizens despite the so-called imperatives of neo-liberalism and globalization. We can locate these ideals in a Constitution and a Declaration of Independence that “makes promises, promises that have yet to be fulfilled” (20). That is truly the Constitution “in exile” during the Boehner Speakership, the Obama Presidency, and the Roberts Court. It will take something close to religious faith, and the bold experimentalism of a new FDR, to bring it back.