Originalism as History and Story-Telling
posted by Mark Graber
“The whole nation is interested that the best use shall be made of the territories. We want them for the homes of free white people.”
This is what he said. This is what Abraham Lincoln said [You should be listening to “A Lincoln Portrait.”} He said, “the free Territories of the United States . . . should be kept open for the homes of free white people.” He said, “The free white men had a right to claim that the new territories into which they and their children might go to seek a livelihood should be preserved free and clear of the encumbrance of slavery, and that no laboring white man should be placed in a position where, by the introduction of slavery into the territories, he would be compelled to toil by the side of a slave.”
These words are absent from Aaron Copland’s magnificent “A Lincoln Portrait,” as they are absent from Jack Balkin’s equally magnificent and culturally important Constitutional Redemption. Aaron Copland’s Lincoln declares, “As I would not be a slave, so I would not be a master. This expresses my idea of democracy. Whatever differs from this, to the extent of the difference, is no democracy.” Jack Balkin’s Abraham Lincoln describes the United States as “conceived in liberty and dedicated to the proposition that all men are created equal.” Neither cite Lincoln’s opposition to making free African-Americans citizens of Illinois or giving them the ballot.
Constitutional Redemption forces us to confront the tensions between these different Abraham Lincolns, even as only one Abraham Lincoln is explicitly presented. The Abraham Lincoln Balkin presents speaks for the aspirations of the American constitutional order and for the promise of redemption. Americans can redeem their political order from the injustices of the present, both Balkin and Lincoln agree, by returning to first principles, whether those first principles are those ratified in 1789, 1791, 1868 or, perhaps, 1932-36. Of course, the proponents of the alleged injustices of the present often assert that the citizens who truly committed to first principles. Stephen Douglas thought a reaffirmation of herronvolk democracy the cure to all that afflicted the United States during the 1850s. The Abraham Lincoln of the sainted Dred Scott and the Problem of Constitutional Evil was not entirely unsympathetic with this point of view.
The crucial move Balkin makes is recognizing that the debate over first principles is resolved by political movements and storytelling, rather than by historical citations in Supreme Court opinions. The course of contemporary constitutional politics largely depends on which political movements can tell the stories about the American past that attract the most support. When telling these stories, crucial players need to be unambiguously presented. Abraham Lincoln must be the great emancipator, and not a crafty politician quite willing to make dubious deals to gain office. Copland’s Lincoln must be Balkin’s Lincoln. The student of American constitutional development is engaged in a very different enterprise. More often than not, that project is designed to highlight complexities and differences rather than objection lessons or inspiration for the present.
Nevertheless, some tensions may remain between the first substantive chapter of the work, “Just a Story,” and the last “How I Became an Originalist.” One danger is that the practice of story-telling originalism may drive out the practice of historic originalism. When telling attractive stories about Abraham Lincoln in order to inspire others to act more justly in this world, we may forgot that other disciplinary actors with other purposes may have important reasons for providing a different account of Lincoln. We may rest content claiming that Lincoln had an erroneous application of the principle of equality, never understanding, perhaps, either than Lincoln was committed to very different principles or believed that egalitarian principles had to be balanced with other principles of equal constitutional pedigree.
More important, people may confuse the legitimate role of story-telling originalism with an illegitimate form of historical originalism. Originalism, without the “story-telling” adjective, risks giving normative status to historical research done for other purposes. Justice Jackson famously declared that “fundamental rights” should “depend on the outcome of no election.” Balkin understands that is wrong. But fundamental rights certainly should not depend on what I discover when I research principles people in 1868 thought underlay the post-Civil War Amendments.
August 1, 2011 at 2:27 pm
Posted in: Constitutional Redemption Symposium
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Responses (2)
A.J. Sutter - August 2, 2011 at 2:23 am
Nice post. References to Herrenvolk and such make one also think of Nietzsche, who at times had lucid things to say:
Maybe it provides a sort of counterweight to Copland-style constitutionalism that both the current German and Japanese constitutions grew out of a determination not to reinterpret the past into something beautiful.
Seth Edenbaum - August 4, 2011 at 9:00 pm
Balkin is acting as an advocate, as lawyers do. He’s engaged in an argument with Posner, Vermeule and their ilk. But his logic or his faith force him to fudge his history to defend his vision of democracy, which allows Vermeule to counter as a hardened realist and blablabla. I find myself more and more envious of Canada and the living tree doctrine, which renders all this irrelevant.
Our relation to the Constitution is like our relation to Don Giovanni. And every time Peter Sellars has a new production set in Trump Tower or Las Vegas, we set about arguing whether he made the thing fresh or somehow screwed it up. The only difference between the two debates is I suppose the matters of life and death, or justice and tyranny: the baggage of politics. I love baggage; thinking about baggage takes up a good part of my life. But treating politics as baggage, as vulgar, has its advantages. I see no need to waft about in discussions of faith and redemption; fascism is fascism, why pussyfoot around it? Posner and Vermeule defend what lovers of democracy abhor, what else is there to say? They claim to find support for this in the Constitution but Christian kings found support for the Crusades in the Bible. They claim to defend reason. My response is simple. I’ve said it before and I’ll repeat it: “That authoritarianism has become normative may be a scientific fact, but that does not make authoritarianism itself a scientific truth.”
Balkin is arguing from the past and about the future, but somehow the present is lacking.
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