Archive for the ‘Constitutional Redemption Symposium’ Category
posted by Bernadette Meyler
What is the right moment at which to switch from faith to disbelief? This question was posed for me by Dan Solove’s post on “Losing Our Religion,” as well as by the juxtaposition between Jack’s book and Sandy Levinson’s Our Undemocratic Constitution, works that share many sympathies yet appear to reach opposite conclusions. In particular, I wonder whether the kind of faith involved is susceptible to reasons or involves a more existential decision to affirm or deny the possibility of redemption. Personally, I would prefer the former option, partly because of the role of elites in shaping constitutional narratives that Doug, Danielle, and others have discussed.
If we envision elites as particularly important in constructing constitutional narratives, or, as Danielle evocatively suggested, see “judges, politicians, and government officials” as “the high priests who owe a special responsibility to redeem the Constitution’s promises on the public’s behalf,” we might wonder what options individual members of the public possess, aside from simply endorsing or rejecting these narratives.
Here I think that some aspects of a law and literature approach might be helpful. As literary scholar Peter Brooks has contended in “Narrative Transactions–Does the Law Need a Narratology?,” literary methods may assist in understanding the role of narrative in law by inquiring “what narrative is, how it works, what its parts might be, and how they might go together–in short, the kind of questions that narratology would ask.” Employing these techniques for interpreting and even critiquing narratives may not only be useful for high-level decision-makers like judges but also prove valuable for the ordinary individual attempting to navigate narratives about the Constitution and constitutional meaning.
Literary methods would aid in considering not only the relation between a constitutional narrative and the history to which it refers–a relation that several contributions to this Symposium have touched upon–but also the structure of the narrative or even myth itself. Constitutional narratives, like other kinds of stories, partake of particular generic forms (as Balkin and Levinson diagnose in referring to tragic and comic alternatives [80-82]) as well as rhetorical techniques. By shifting focus to these methods of construction, it becomes possible to find mechanisms for evaluating the plausibility or lack thereof of particular narratives, mechanisms that the individual citizen may deploy even if he or she does not participate directly in the creation of a constitutional narrative.
posted by Alexander Tsesis
At one notable point of Jack Balkin’s new book, Constitutional Redemption, he integrates Grecian and Judaic traditions. In the Aristotelian tradition of the Poetics, Balkin informs the reader that constitutional theory may be conceived as a tragedy with the American people the tragic heroes because it is their flaws–be they “fear, anger, prejudice, greed, or shortsightedness”–that have led to tragic results like the willingness to tolerate or participate in slavery, gender inequality, or religious intolerance. On the other hand, constitutional failure may also be thought of as a comedy of errors, where the players are ludicrous because they do not recognize their own shortsightedness or the harms of acting on demeaning stereotypes.
The way forward, as Balkin sees it, is through progress; a progress that neither idolizes the past nor dismisses it out of hand. He analogizes constitutional progress to the advancements of Jewish history. Although Jews today, he tells us, do not follow identical practices of their ancestors–for instance, they do not visit the temple in Jerusalem yearly–they have maintained a connection to their tradition through change. The Jewish identity, then is not merely a static construct, but a liquid one that retains the maxims of its forefathers even as it advances with the changes of the Diaspora, the pogroms and the Holocaust, and the establishment of the State of Israel. Erich Fromm, in You Shall Be as Gods, makes a similar point: By the time of the prophets the Biblical text had evolved from the Torah’s injunction to settle in the land of milk and honey to the realities of Assyrian and Babylonian captivities.
So too with the tragic comedy of constitutional development. While it remains intact, it’s clauses are often understood by courts, politicians, and the public in very different ways than they were at times of ratification and amendment. Jurisprudential theory that contains identifiable standards but allows for the evolution of interpretation explains why the Original Constitution, which, borrowing language from the prophet Isaiah, William Lloyd Garrison called a “covenant with death” because of its protection of slavery, had so much relevance to the civil rights movements of the contemporary United States. In large part, progress has been achieved by amending the Constitution at the realization of tragic flaws.
Epiphany through tragic error, however, is neither necessary nor preferable–it is possible to imagine the will of the people being exercised for the general welfare without first creating a tragic situation demanding change. But in reality the tragedy typically plays out before social groups emerge around a cause to demand constitutional betterment (through judicial opinions, the formal amendment process, or informal legislative devices) The prophets, in the American drama, are drawn from the people themselves–as were the Jewish prophets–to announce the existence of human rights principles, to identify alternatives to current practices, to dissent and protest unconscionable conduct, and to envision improvement.
posted by Douglas NeJaime
I want to offer my thanks again to Danielle Citron for organizing such a lively symposium. And I want to thank Jack Balkin for elaborating some of the themes taken up in the blog posts and connecting them to his wonderful book. I want to offer some final thoughts on the new directions that Jack suggests in his post — understanding and measuring how “nodes of influence and authority . . . shape constitutional culture and move claims from off-the-wall to on-the-wall.” Jack suggests an interdisciplinary research agenda. Here I want to map more specifically merely some of the ways in which such a project would impact social movement work in sociology and political science.
For purposes of this post, what Jack refers to as “nodes of influence and authority,” I will refer to as the potentially more narrow “elite support” and include within the term state and non-state elites (e.g., elected officials, judges, policy elites, media commentators, government lawyers, celebrities); I do not mean to include here social movement advocates themselves, who in many senses are in fact elites and whom we have been discussing within the broader category of elites.
The conventional account in social movement work argues that elite support produces a deradicalizing and narrowing impact on movement politics and organizing. As elites buy into the movement’s claims, the movement is slowly coopted. Elite support, which is necessarily correlated with institutional, non-confrontational tactics, narrows the movement’s goals. More recent social movement work questions this generally pessimistic account and instead acknowledges the more complicated effects of elite support. For instance, Suzanne Staggenborg’s work on the pro-choice movement acknowledges that while elite support produced a narrowing effect on the movement’s agenda, it also contributed to the movement’s longevity and organizational strength.
While social movement theory has stressed the moderating effects of elite support, legal mobilization work in law and social movements has furnished a more optimistic account of elite support. Through the legal mobilization lens, elite support is a key indirect effect generated by court-centered strategies (and resort to constitutional frames). Once elites buy in to the movement’s claims, the movement advances; elsewhere I have labeled this the “elite support progress narrative.”
Yet closer attention to elite support suggests a more nuanced and complicated dynamic. Elite support may aid a movement’s goals, as legal mobilization scholars claim, or it may hinder a movement’s progress. Elite support may manifest itself in institutional tactics that narrow the movement’s objectives, as social movement scholars suggest, or it may appear in confrontational acts of defiance that electrify the movement. Accordingly, we must, as Jack suggests in his post, treat elite support as an empirical question. Social movement work in political science, sociology, and law will benefit just as much from Jack’s suggestion as constitutional theory will.
I want to add two qualifications or additional points, suggested by social movement and legal mobilization scholarship, to Jack’s agenda for research on this topic. First, we should make room for the demobilizing potential of elite support. How might supportive elites negatively impact the trajectory of constitutional arguments? (How) might elite support alter the trajectory of an argument in a way that actually takes that argument off-course in its journey from off-the-wall to on-the-wall? Second, we should attempt to understand the limiting effects of elite buy-in, particularly when mediated through constitutional frames. How does take-up by elites limit the broader social movement agenda? How might “nodes of influence and power” narrow the constitutional, political, and moral vision advanced by the movement, and what are the effects of such limiting functions on the social movement and on constitutional culture? How might constitutional argumentation itself relate to political moderation? Jack pushes us to address elite support as an empirical question; the scholarly reach of this project should not be underestimated. A more empirically grounded and multidimensional analysis of the “nodes of power and influence” would, at a minimum, advance work in law, sociology, and political science.
posted by Jack Balkin
My thanks to Danielle Citron for organizing what has been an excellent set of essays. There is so much rich material here that I don’t know really where to start by way of response. I thought I might simply point out a few places in these posts that I thought were especially worthy of note, and one cluster of ideas that might lead to future research.
posted by Mark Graber
Consider constitutional redemption from the perspective of the government obligation to fill in potholes. Filling in potholes is an important government activity. People tend to regard government as legitimate when government fills in potholes and performs similar tasks effectively. Constitutions are designed so that government will be led by people who know how to fill in potholes or at least know who to call when a pothole needs filling in. The most important constitutional question in 2011, as Sandy Levinson never tires of reminding us, is whether the Constitution of the United States (or many state constitutions) provides a means of staffing the government and making rules that enables government to do a decent job filling in potholes.
The central problem constitutionalists must face is how can we get people who agree on the need to fill in potholes to cooperate when they disagree on same-sex marriage, affirmative action, prayer in public schools and other obsessions of American constitutional theory. Most constitutions rely on some combination of the following two strategies. The first is to come up with some compromise, deeply unsatisfying to everyone, which nevertheless enables people to believe they are better off cooperating and filling in the potholes, than standing on principle and confronting impassable streets. The second is for the constitution to combine vague generalities that each side can declare with some plausibility supports their position with a set of political procedures that prevent one side from imposing too much of their view on the other unless they have successful persuaded pretty much all relevant elites that they are correct.
Some times, the resulting constitutional politics permit us to talk about our differences over principle, with the winners being those who mobilize the most people. But sometimes we just have to live with each other. My spouse is not going to become a New York Giant football fan, my home office will always be a mess, the University of Maryland Law School (where I work) is not going to relocate to northern New England, the United States (where I live) is not going to place strong limits on how much money a person can make. Whether some ketubah, contract or constitution might be interpreted to require a different result is beside the point. Living with other people entails abandonment that redemption is likely to occur on your terms. The real constitutional question is whether we are better off living with the Tea Party or moving elsewhere (or following the sainted Abraham Lincoln, ordering troops to shoot those with whom we have a constitutional disagreement).
The constitution is redeemed in this view when our debates over all the constitutionally peripheral issues (slavery, fundamental human rights, basic dignity and equality of all human beings, etc.) do not interfere with government capacity to fill in potholes. By placing fundamental human rights at the core of constitutionalism, I think we reverse priorities. Constitutions are not about redeeming deep foundational principles. They are about potholes, the mundane things in our lives that we all agree government should do, and under a good constitution, government will do well.
posted by Bernadette Meyler
Which is the “real” Constitution, the one on the page, proliferating across contexts on the web, or the lived tradition, unified by the common trajectory of a people and practices established and modified over time? This, I think, is one of the most fascinating questions raised by Jack Balkin’s rich and insightful book on Constitutional Redemption. Whereas earlier approaches to the Constitution analogizing it with either literature or religion tended to emphasize the constitutional text and individual conscience, Balkin shifts focus to the groups and social movements that have waged struggles to claim constitutional meanings and to what I would call the performance or acting–as opposed to the textual–traditions of the Constitution.
Under Balkin’s account, faith in the Constitution does not appear to be faith in the constitutional text, but in the constitutional project, a project that unifies a particular people, the American people. Constitutional redemption can, then, be identified as the redemption of that people. Although Balkin never explicitly draws the analogy, he seems to suggest that the American people might be thought of as the “chosen people” of the Constitution just as Jews have identified as the “chosen people” of the Bible. This vision of the constitutional project depends much more on a collective and lived set of practices than most prior forms of constitutional interpretation have. From this emphasis on collectivity many aspects of Balkin’s narrative follow. For example, rejecting the idea that constitutional legitimacy stems from “reasonableness” and “individual conscience” alone, Balkin explains that citizens’ assembly in groups and social mobilization both are more significant than a focus on individual conscience would suggest and often serve to alter conceptions of reasonableness themselves (61).
Nevertheless, elements of an earlier hermeneutic tradition remain visible here. Hans-Georg Gadamer, who furnished the most comprehensive twentieth-century version of hermeneutics, identified the existence of the work of art with its reproduction in each particular context, in relation to its audience or reader. As Gadamer explained in his magnum opus, Truth and Method, speaking of the dramatic work, the play does not exist completely apart from the spectator, but instead, “In being played the play speaks to the spectator through its presentation; and it does so in such a way that, despite the distance between it and himself, the spectator still belongs to play” (115). Similarly, for Balkin, “the proper analogy . . . is not law as literature, but law as music or drama” (91), which means that “the performer has a double relationship: to the author or composer of the text, and to the audience or community before whom the performance takes place” (91-92). This audience or community takes on substantial significance in Balkin’s narrative and prevents the performer from focusing exclusively on the constitutional text.
While this modification significantly improves upon the conventional law and literature account of the relationship between the individual and the law, whether constitutional or otherwise, the analogy with drama could be carried even further than Balkin takes it. At the Shakespeare Association of America conference last spring, I heard a fascinating paper by James Marino of Cleveland State University that discussed, among other things, the divergences between the textual tradition of Shakespeare’s plays and the acting tradition and lamented the extent to which focus on the former has usually entirely displaced the latter. Adding this element to Balkin’s account would suggest that the legal performer connects not only to the collectivity of his or her audience but to the collectively established acting or performance tradition, whcih itself has furnished a gloss upon the text or revised that text according to the demands of the stage. The legal performer too here remains part of a collectivity that he or she can transcend or simply conform to, but that continues to shape the performance as significantly as the demands of either text or audience.
posted by Alexander Tsesis
Redemption of founding principles, as I read Jack Balkin’s book, Constitutional Redemption, is not nostalgic naivete for some supposed heroic period of American history. Rather it is “fidelity to original semantic meaning” of the constitutional text that Professor Balkin has in mind by “originalism.” Accordingly, the significance of even intensely progressive clauses of the Constitution, like the Equal Protect Clause, is not predicated on their significance to the framers of the Fourteenth Amendment–for whom, as Balkin reminds us, women’s rights and anti-miscegenation laws were likely not within its framework–but on the combined assessment of individuals, social groups, politicians, and judges.
Professor Graber, in his post from August 2, 2011 at 19:43 is undoubtedly correct that constitutional storytelling can be manipulated to dress a narrow political point of view in the benighted raiments of antiquity. I nevertheless believe that accuracy in storytelling is important for portraying principles, trends, rulings, and contextual facts about America’s trajectory as a nation and Americans’ trajectory as a people.
Take as an example the question of Abraham Lincoln’s redemptive image, Father Abraham or Honest Abe as some called him. It is woefully true that this great figure he supported colonization into the early period of his presidency before abandoning the plan by January 1, 1863. But an immediatist abolitionist could not have been elected to the presidency in 1860. The general attitude even in the North was for ending the flow of slavery to the western territories but leaving southern states unrestrained in their slave regulations. To take one demonstrative example of the lack of popular support for abolitionism in the North: In December 1860, when Lincoln had already won the presidency, a mob tried to attack radical abolitionist Wendell Phillips after he gave a speech at the Negro Baptist church on Joy Street. Unable to get at its prey, the mob attacked black citizens and smashed house windows in the black section of the city. In such an atmosphere, neither Phillips nor William Lloyd Garrison–much less Susan B. Anthony or Charles Sumner–had a chance in the relatively liberal state of Massachusetts, where Lincoln received 62.9% of the state vote with Stephen Douglas coming a distant second with 20.3%. And if Douglas had won the presidency, there’s no guessing how much longer slavery would have been legal in the United States and how far northwest it might have spread. My point is that just as originalism’s claim to identifying the past through modern lenses is wrong so too is anachronizing contemporary standards to past events. The redemptive value of heros must be judge within the context of their own times.
One of Graber’s important points is that it’s one thing to praise a redemptive figure like Lincoln in general, and it’s easy to get support for such a view, but quite another thing when we begin to question how this moderate liberal would have addressed problems like redistribution or affirmative action: That is to say, the more detail the more nuance, and that’s generally true of history.
To be honest, I do not know for sure how Lincoln would have acted to the issue of affirmative action, although I am sure it would not have been in accordance with contemporary standards. What is certain is that he provided for the security of contraband during the Civil War and at the end of his life spoke about granting black veteran soldiers the right to vote. That was wholly inadequate to deal with all the facets of slavery and racism, but we should judge Lincoln according to his own day and age. The great orator and one time slave, Frederick Douglass, also rejected affirmative action in 1865, when he told the Massachusetts Anti-Slavery society to “Do nothing with us [blacks], for us, or by us as a particular class.” Douglass renounced that position after he saw the Souther recalcitrance with Reconstruction, its Black Codes, and Ku Kluxers. And we might imagine that had Lincoln lived to witness these injustices he too would have realized, just as did Douglass, that without the continued support of federal agencies like the Freedmen’s Bureau, blacks stood no chance at achieving real equality, neither in the South nor the North. It was, after all, Lincoln who signed the Freedmen’s Bureau Act into law.
As for redistribution, it is true that Lincoln did not support such an entitlement. That failure to advance justice on that score, however, should be attributed to Congress rather than Lincoln. Almost no one in the Republican or Democratic parties supported Representatives Thaddeus Stevens’s or George Julian’s land distribution plans. In retrospect, the country committed a grave wrong by preferring reunion to reparations, but Lincoln did not stand alone in such a tendency. Judged according to his own time, I believe Lincoln made positive advances in the direction of racial justice. That does not make him a messianic hero but a flawed one who made very positive strides to redeem the equality message of the Declaration of Independence.
The possibility of constitutional redemption is not anchored in Lincoln–nor other civil rights movers like Harry Truman or Lyndon Johnson–but in the principles and standards to which Balkin draws attention. The existence of neutral clauses in America’s founding documents, to which I drew attention earlier, provides the necessary opening for disempowered groups to demand the country to come to terms with its injustices, not on the basis of an abstract philosophy but a written creed. This is why I disagree with Rogers Smith’s ascriptive understanding of American history. While Smith is correct that “successful American political actors have not been pure liberals, democratic republicans, or ascriptive Americanists, but have instead combined politically potent elements of all three views.” I believe that he is mistaken that “American liberal democracy is not the ‘core’ meaning” of United States national purpose.
My reasoning is similar Balkin’s because I think he is correct that among other aspirational provisions to the Constitution, the Preamble “sets a purpose that has never been fully achieved but is our duty to achieve.” Aspirationalism, in Balkin’s sense, is seeing “the possibilities and the resources in the Constitution and in the constitutional tradition” and recognizing “that developing and realizing these possibilities and resources in history is perhaps the Constitution’s most basic command.” But, unlike Balkin, I think that the existence and normative value of these aspirations comes not merely from a social group’s ability to put them “on the table” of politics or into positive law, but the existence of innate human rights (e.g. the right to privacy, travel, and dignity) that the government lacks the power to infringe upon absent a compelling state reason.
The Reconstructed Constitution and the Declaration of Independence contain ideals for equality that a truly ascriptive system, like Nazi Germany, simply does not. There is nothing comparable to the overtly racist Nuremberg Laws in America’s founding documents. What we have, rather, is a country with far too many failures–in matters of race, gender, sexuality, religion, and immigration, to name just those that come to mind–but those failures were violations of the standards, which Balkin sees as essential for redemption, not manifestations of them. The differentiation between reality and ideals allowed workers’ parties, abolitionists, feminists, and disabilities rights groups to have faith in the founding documents even as they condemned the nation for failing to live up to them.
On another point Graber raises in his post about Lincoln’s appointees to the Supreme Court, I want to commend him for bringing Chief Justice Salmon Chase’s service to mind. I think it important to also speak about Justice Noah Swayne as a visionary hero of the original principles.
Lincoln nominated him to the Court in 1862. Swayne did in fact care deeply about the plight of blacks in America. He espoused abolitionism even before the Civil War, at one time he and his wife freed slaves they received by marriage. As an attorney, Swayne had even represented fugitive slaves. His political views were closely tied to anti-slavery sentiments. He had joined the Republican party in response to the 1850 controversy about the Fugitive Slave Law.
It was Swayne who wrote the earliest federal opinion on the Thirteenth Amendment as a designated district court justice. In United States v. Rhodes, he found Congress’s decision to pass the Civil Rights Act of 1866 was in accordance with “the spirit in which the [Thirteenth] amendment is to be interpreted.” Without the Act’s provision granting blacks the same right to testify as any white citizen “simple abolition, would have been a phantom of delusion.” Even more powerfully, his often overlooked dissent to the Slaughterhouse Cases, spoke of the ratification of the Reconstruction Amendment’s as “a new departure, and mark an important epoch in the constitutional history of the country” which were in accord with (or we may say redeemed) “the fundamental principles of the social compact.” After his retirement, Swayne commended Justice Harlan for his dissent in the Civil Rights Cases. “In my judgement,” Swayne wrote “it is one of the great, indeed one of the greatest, opinions of the Court does you infinite honor, is all that could be desired, and will make a profound and lasting impression upon the Country” With this ideology, I think we can fairly say that Swayne was a redemptive hero of Reconstruction.
posted by Danielle Citron
Constitutional Redemption envisions the Constitution as a wiki-like project of tinkering and revision in which each “generation has an obligation to flesh out the Constitution’s abstract commitments and build out institutions.” How do the American people fulfill that obligation in practice? As Doug underscored, Jack isn’t necessarily suggesting that lay people read the Constitution’s text and try to convince others to see it their way. They could, and the written nature of the Constitution gives them the opportunity. More often though, elites tend to mediate on their behalf, producing narratives that shape how the public understands the constitution and how the courts interpret it.
Jack’s vision of constitutional stewardship offers much-needed inspiration, but like any notion of religious stewardship, we must ask what is required of its followers. We might consider parsing the obligations of participants in the constitutional redemption project as follows. One might imagine that judges, politicians, and government officials are the high priests who owe a special responsibility to redeem the Constitution’s promises on the public’s behalf. Or, in secular terms, these figures stand in a special relationship to the public. Like firemen, policemen, and lifeguards that tort law holds have a special responsibility for the public welfare, this category of actors cannot shirk their duty to rescue the constitutional project whenever it is endangered.
Much like the Good Samaritan who comes upon the scene of an accident and offers assistance, social movement activists undertake efforts to rescue the constitution. And like the well-intentioned bystander, they, too, must take steps not to cause gross harm. As Frank notes, some social movements could intentionally mislead the public. Once a social movement signals their intent to speak for others, they must do so faithfully to the principles of “We the People.”
That leaves lay people who don’t necessarily understand the redemption project — they can either participate or let others speak for them, as Joey explores. Jack doesn’t seem to put forth a thick notion of citizenship, but he does seem to call for supererogatory engagement. While people can remain citizens without expressing the ideals of constitutional stewardship, our best shot at redemption comes from their doing so, even and especially in the absence of obligation.
What Jack’s brilliant book does is highlight the pivotal role and responsibility of the American people in the constitutional project. It’s a project worth joining and worth thinking hard about the scope of its obligations.
posted by Joey Fishkin
I think this is yet another area where Jack’s analogy (or really, Sandy Levinson’s analogy, which Jack credits generously) between constitutional faith and religious faith, between the Bible and the Constitution, is highly instructive. The Protestant idea that we all can read and interpret the Word for ourselves is just that—an idea. It is an important idea for reasons I’ll say something about in a second, but it’s somewhat aspirational. One can, and some people do, believe in the authority or even the inerrancy of the Bible without reading it much (or at all). It is also possible to read it without understanding it very well. Most people today report that they find Biblical text hard to understand (although the irony is not lost on me that the survey I just linked to saying so was conducted by the Vatican).
Luckily, if you have a hard time reading or understanding your Bible or your Constitution, help is on the way! Many experts and leaders—elites, as Doug says—stand ready to help by offering interpretations, often complete with textual citations, that ordinary people can understand (and there is no need for most people to actually go look up the citations). Very often these authorities offer their interpretations in a manner that is charismatic, memorable, and convincing. Their interpretations are all the more convincing when they happen to square with one’s own pre-existing beliefs about what the Bible or Constitution ought to say or mean.
So does all this mean the Protestant idea has no practical effect? Quite the contrary. The Protestant idea has an extremely important effect. The normative premise that we all are able to read and interpret the text for ourselves means that we do not have to trust the priests in the temple; we do not have to trust the Justices who emerge from behind the curtain of the Court. We get to decide for ourselves who to trust, whose interpretive authority to respect. This is, as Jack says, a great theology for dissent. We can decide we agree with people who say that on a particular question, all nine Justices got it wrong.
This is why Jack’s conception of constitutional Protestantism is linked in a such a deep way with his account of the role social movements play in constitutional change. But in my view, the mechanism by which constitutional Protestantism empowers social movements to make constitutional changes has little to do with ordinary people literally reading the constitutional text and coming up with their own interpretations of its meaning. Read the rest of this post »
posted by Mark Graber
Consider the following problem. Abraham Lincoln appointed five justices to the Supreme Court, Noah Swayne, Samuel Miller, David Davis, Stephen Field, and Salmon Chase. Only one, Salmon Chase, seemed to care deeply about persons of color. What explains the judicial hostility to Reconstruction, even among Lincoln’s judicial nominees?
Some explanations focus on judicial independence. Life tenured justices, we are told, often vote in ways that surprise their political sponsors. Other explanations focus on the political construction of judicial power. Lincoln’s judicial nominees were not committed racial egalitarians because Lincoln was not a committed racial egalitarian. Other kinds of explanations are also possible, as well as more sophisticated versions of the judicial independence and political construction theses.
Much scholarship on American and constitutional developments seeks to answer this and related questions. Political scientists and historians think explaining why Lincoln’s judicial appointees were often hostile to Reconstruction may cast light on the relationship between the federal judiciary and the rest of the American regime. We do not, however, think explaining why Lincoln’s nominees took conservative positions ought to tell as much about the constitutionality of affirmative action and gay marriage.
The main virtue of Constitutional Redemption, my first post suggested, is that understanding constitutional argument as a form of story-telling enables us to distinguish the sorts of reasons we ought to give when explaining judicial behavior during Reconstruction and interpreting the Fourteenth Amendment. When explaining judicial behavior, getting Lincoln right is very important. If we overestimate Lincoln’s commitment to racial equality, we may overestimate judicial independence from presidential politics and, as a result, make political mistakes in our time. When interpreting the Fourteenth Amendment, getting Lincoln (or Bingham or whoever) right is less important. If we overestimate Lincoln’s committee to racial equality, we are likely to more good than wrong in the world.
My central concern with originalism is that originalism tends to conflate two very different kinds of historical inquiries, the sort we do when we are trying to explain the past and the sort we do when we are trying to determine our fundamental values as a nation. Worse, originalism tends to teach us that the way we combat our opponents is hit them over the head with eighteenth century dictionaries and Volume 5 of the Collected Works of Abraham Lincoln. The truth of the matter is that political movements only arise and endure in a country such as the United States when they can tell a story of American history that is about as true to history as the other enduring narratives of the time. Professor Tsesis’s narrative of Abraham Lincoln is presently compelling because no one wishes to contest the moral. The minute, however, he invokes Abraham Lincoln to support redistribution, affirmative action or the designated hitter rule, members of the opposite party will be armed with six Lincoln quotes that just demonstrate the opposite.
Moving to ever more abstract principles is likely to be inadequate for two related reasons. First, at some point, the principles become so abstract as to be meaningless. Second, as the principles become less abstract they become far more contestable. Consider Rogers Smith’s claim in Civil Ideals that racism is an independent ideology that is deeply rooted in the American political tradition. Suppose that is true. Most framework originalism claim that, we just happen to be lucky that this principle, deeply rooted in the American political tradition, just happens not to be deeply rooted in the American constitutional tradition. Put differently, should the debate over the constitutional status of racism depend on when and why Abraham Lincoln abandoned colonization.
Constitutional Redemption, minus some of the last chapter, belongs in the new genre of constitutional politics. A central them of Constitutional Redemption is that political movements succeed by out-organizing and out-voting their rivals. The Supreme Court advances their constitutional vision when they gain the power to put sincere believers on the federal bench (or are at least able to veto rival attempts to stack the courts with those of a rival faith). Constitutional stories are a central means by which the faithful are rallied, but we will gain nothing merely by waiving one of my footnotes and claiming our history is 51.35% more accurate than someone else’s history.
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.
Read the rest of this post »
posted by Daniel Solove
The symposium on Jack Balkin‘s new book, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press 2011) is running from Monday through Thursday of this week.
posted by Daniel Solove
I thoroughly enjoyed Jack Balkin’s Constitutional Redemption, and I found myself largely in agreement with many of Jack’s major claims. But overall, I find it hard to share his optimism.
At its core, Balkin’s constitutional jurisprudence is one founded upon faith — a faith in redemption. He concludes his book with the following paragraph (SPOILER ALERT):
Faith in the Constitution is really faith in a succession of human beings working through a framework for politics, adding to it as they go, remembering (and misremembering) what previous generations did, and attempting to persuade each other about how to make it work. To believe in this project is to believe in progress despite human imperfection, and in what Abraham Lincoln called the better angels of our nature. If we want to believe in the Constitution, we must believe that, flawed as we are, we can create a better world than the one we inherited. If we want to have faith in the Constitution, we must have faith in ourselves.
And to that I say “amen.” Although this sounds right descriptively, and I believe it is correct, part of me has lost faith. The very structure our Constitution sets up, when mixed with contemporary views and politics, might at its core be showing its age and not up to the challenges ahead. Despite hope that the ship will sail on, the ship might have too many holes in it to remain seaworthy for long.
Why do I feel this way? Congress is deeply divided and can barely act unless under dire circumstances. Money and special interests are infecting politics and exercising undue influence. The size of our country is so large now that I wonder whether our system scales up particularly well. Districts are Gerrymandered, increasing polarization and radicalization. Supreme Court confirmation hearings are a joke, where prospective justices must give a nod to the tired old shibboleths of how they are umpires and neutral. Our legal system is ridiculously inefficient, where the costs of resolving disputes often outstrip the money at stake. Our criminal justice system resolves 95% of cases by plea bargains, with defendants readily signing away their rights. I could go on and on.
posted by Emily Zackin
I recently helped a friend study for her Canadian citizenship test. The Canadian government provides an informational booklet to help test-takers prepare, and as we worked our way through it, I was continually surprised by what a large fraction of the booklet was devoted to a description of Canadian history and political development. Had I read, Jack Balkin’s Constitutional Redemption beforehand, however, I would have anticipated its emphasis on history. Balkin’s focus is, of course, not on Canada, but on the American constitutional system. He argues that constitutional legitimacy is fundamentally about the narratives we craft from our history, narratives that link us to that history and let us extrapolate from a present, which includes grave injustices, to an improved and redemptive future. We tell stories about the past, in other words, when we want to teach lessons about which courses to pursue and reject. Through this narrative process, the U.S. Constitution serves as a common source of American’s arguments about how and why the future should be different from the present.
As Balkin notes, the recognition that constitutional meanings seem to change over time, that practices shift from totally illegitimate to entirely acceptable, or move in the other direction, has spurred many of the seminal works on constitutional interpretation. Many constitutional theorists have grappled with the question of how the constitutional enterprise can still be legitimate if the constitution’s meaning can change so dramatically over time. Or, put a little differently, what is it that legitimates these constitutional changes? What makes them more than simply politics, and if they are simply politics–if constitutional meaning follows the election returns or if might is equivalent to right–then why should the losers in particular constitutional struggles continue to participate in the system?
Balkin’s insight is that this feature of constitutionalism, its constant change over time in response to political pressures, is not a problem for constitutional legitimacy; in fact, it is the solution. As Balkin tells it, it is the assurance that constitutional meaning will change that allows all of us to continue participating in a constitutional enterprise riddled with injustice. The inescapable conclusion that constitutional meaning changes over time gives us reason to hope that it will change for the better (whatever our version of better may be), and this reasonable faith in the Constitution’s changeability allows us to pledge fidelity to and invest legitimacy in the Constitution, even while it remains deeply flawed. I believe Balkin’s argument has both a normative and empirical component. Not only is this how things work in practice, he suggests, but it is a desirable way for them to work.
The empirical component of this project reminded me very much of H. L. A. Hart’s famous contribution to the philosophy of law. Unlike his predecessors who described law simply as a sovereign’s command, enforced through the threat of punishment, Hart insisted that we have to understand the internal, psychological and emotional element of law in order to fully understand its nature. Law is not simply a command backed by a threat, Hart explained, it operates on people’s sense of legitimate and proper conduct. By describing the central role of faith and historical narratives, Balkin has made a similar (and similarly important) contribution to the study of constitutional interpretation.
I wonder, however, whether we really need faith that the constitution will be redeemed in order to pledge our fidelity to it? Couldn’t we simply have faith that we are living under the least evil system, even if it is one that consistently permits and perpetuates many evils? Perhaps a faith in something less than redemption might help to answer the question Balkin poses on page 133, about why those who believe that economic inequality is a grave injustice of our constitutional system, seem nonetheless to accept the system’s legitimacy. Perhaps they maintain their faith not because they believe that economic inequality will one day be understood as constitutionally illegitimate, and the constitution will thus be redeemed, but simply because they have determined that the constitutional system, even if it always countenances this injustice, provides a better framework of government than the available alternatives. I also wonder whether it is possible to tell the difference between these two convictions. Is faith in constitutional redemption observationally distinguishable from lack of faith in a better alternative?
posted by Alexander Tsesis
Among the most interesting topics discussed in Jack Balkin’s Constitutional Redemption is the relevance of the Declaration of Independence. I found his thoughts very helpful for one of my current projects, Representative Self-Government and the Declaration of Independence, on the legal relevance of the Declaration to contemporary civil rights and campaign finance issues.
Many scholars have mistakenly taken the document to be a vestige of the past, but that is not the case with Balkin. He believes that “American constitutionalism is and must be a commitment to the promises of the Declaration makes about our future as a people.” Going even further, Balkin asserts that “the Declaration is our constitution . . . because it . . . constitutes us a people.” This statement has deep implications, but needs further fleshing out, which I have sought to do in my draft.
Unlike the Constitution, the Declaration of Independence lacks an enforcement clause: There is no Necessary and Proper Clause for protecting “life, liberty, and the pursuit of happiness,” which the Declaration asserts to be the innate rights of all people. And as Balkin correctly points out, courts typically give no substantive value to the Declaration. Yet the document remains a statement of the national ethos. Social movements–like abolitionists, feminists, and labor organizers–have shown time and again that the statements of rights found in the Declaration’s second paragraph has a significant influence on ordinary people’s understanding of governmental obligations, objectives, and achievements.
With that in mind, I turn to two comments from yesterday’s posts. First, with Mark Graber’s characterization of Lincoln. I agree with him that Lincoln “believed that egalitarian principles had to be balanced with other principles of equal constitutional pedigree” but don’t think that regarding him as a redemptive figure need bedazzle us to his imperfections. While Lincoln certainly was not a Garrisonian abolitionist, neither was he a Stephen Douglas Democrat. He was rather a man whose views on slavery, political and civil equality, and free labor evolved until John Wilkes Booth arrested that development. Their different positions on slavery and free blacks were clear to the audiences of the Lincoln/Douglas debates. Among other things they disagreed about the (in)validity of Dred Scott and the (il)legitimacy of popular governance in the territories. In 1860, presidential campaign literature clearly contrasted Douglas’s placation of slave interests and Lincoln’s opposition to slavery in the territories. Speaking at Cooper Union in February 1860, Lincoln explicitly stated that Republicans “in common with our fathers, who framed the Government under which we live, declare our belief that slavery is wrong.” But, what rightfully troubles us today, is his persistent statements that same year proclaiming the unconstitutionality of interfering with slavery in states where it already existed. That was a commonly held framework of the Republican party, and if he had taken a more radical position it is highly unlikely that he would have won the presidential election. Furthermore, even though his perspective had not yet matured to the point of emancipation and later support for the Thirteenth Amendment, one of the campaign songs of 1860, “Lincoln and Liberty”, included the lyrics: “Our David’s good sling is unerring, The Slaveocrats’ giant he slew, The shout for the Freedom-preferring for Lincoln and Liberty too!”. Thus even then, before South Carolina had even attacked Fort Sumter, Lincoln was conceived by voters as a redemptive figure capable of returning the nation to the unfulfilled promises of the nation’s framing.
There is much to criticize in Lincoln’s position in refusing on constitutional grounds to overtly support repealing the Fugitive Slave Act of 1850 and his support for the Corwin Amendment upon ascending to the presidency. But he also spearheaded the Emancipation Proclamation, which although limited in scope changed the central purpose of the Civil War to liberation of slaves and unification under the principles of the Declaration of Independence; a time of redemption, if you will or, in the words of Charles L. Black, “a new birth of freedom.” But Lincoln was too complex a character to describe him merely as a pragmatist, which can be said about most politicians, without adding that he was an authentic idealist as well. Lincoln was certainly a man who believed that America’s founding documents had a redemptive quality, often referring to the Declaration of Independence as a substantive guarantee of human equality.
On a separate point, yesterday Gerard Magliocca asked the important question of how we can identify whether a framework of redemption is legitimate. He points out that the South conceived of constitutional redemption to be a return to the antebellum acceptance of racial supremacy. The question is how do we know that we have reached the finality of redemption; the end point of our effort to achieve fundamental justice. While I suppose that it is an ongoing process, with no end in sight, I believe that the founding documents offer us a response here as well.
Core standards that can play a redemptive role are stated in neutral terms: The Declaration of Independence spoke in terms of “unalienable rights” that all men–a term that feminists like Elizabeth Cady Stanton and Lucy Stone understood to mean “all people”–were created equal. The preamble speaks of “We the People of the United States” forming “a more perfect Union” for the sake of improving “the general Welfare.” The Ninth Amendment uses the neutral term of rights “retained by the people.” The Fourteenth Amendment’s statement about “the privileges or immunities of” all citizens, or the entitlement of all people to enjoy life, liberty and property without arbitrary state interference. There is no racialist supremacy in these words.
All of these provisions are in need of parsing, none is self-evident in meaning, but I think that none can be reasonably understood to reflect a herrenvolk democracy in a way that, say, the Confederate Constitution did. The existence of herrenvolk democracy in U.S. history–take Jacksonian America as an example–need not reflect negatively of the founding standards to which Balkin refers. As principled statements of national aspiration, to which I interpret Balkin’s redemptive constitutionalism to refer, these principles of representative democracy refer to all the people of the United States (E Pluribus Unum) not only a subset of them. The endpoint, therefore, appears through cultural refinement of our understanding of first principles, and, where necessary, the amendment of them to better protect the people’s fundamental rights.
posted by Douglas NeJaime
Joey Fishkin’s post on Jack’s book poses a fascinating and provocative question: “Is this book really about faith in something like the project of the United States — its ideals, its promise, its commitments, its possible future redemption — rather than just the Constitution?” Joey himself questions whether the dichotomy he draws is a false one, whether American ideals are inseparable from constitutional commitments. Joey’s comments force us to contemplate whether the constitutional text itself is less important (perhaps not important at all) as compared to the stories of American development and identity that we tell one another. In this post, I want to take up Joey’s questions and seriously consider how important (if at all) text is to the project of constitutional redemption.
As Joey notes, Jack has much to say about the role of constitutional text: “The text — and the grand statements of principle found in the text — play a crucial role in this constitutional culture. The text is public. Anyone can pick up the text, read it, and use it in argument. Anyone can refer to the principles of due process, or equal protection, the separation of powers, federalism, freedom of expression, or freedom of religion. A written Constitution that anyone can read and comment on encourages a culture of participation in constitutional argument and a popular sense of ownership in the Constitution[.]” (p. 236, emphasis added) Jack goes on to argue for the democratizing role of the constitutional text. The text, which is open and accessible, “authorizes people from all walks of life to claim the right to interpret it.” (p. 237). Jack connects this reliance on text to his theory of framework originalism; a focus on constitutional text and principle “bridges the gap between laypersons and legal professionals.” (p. 238)
But instead of focusing on “anyone,” let’s focus on elites and situate them as key players in the process of textual meaning and translation. I want to suggest that Jack’s argument about text as a democratizing and participatory vehicle relies on the importance of textual mediation, largely undertaken by (legal and non-legal) elites. That is, while we may on rare occasions observe an idealized notion of laypersons reading and invoking the constitutional text, the more common way in which constitutional text is taken up and proclaimed by ordinary citizens relies on a process in which elites — government officials, social movement advocates, cause lawyers, policy elites, cultural leaders — apply constitutional principles (and their textual grounding) to laypersons’ struggles.
posted by Gerard Magliocca
I want to start by saying that you should read Jack’s book. It’s terrific and you’ll learn a lot. My initial post will be brief, as I’m still thinking about what I want to say here.
One question that the idea of “constitutional redemption” raises is when it should yield to “constitutional finality.” This is, of course, just a restatement of the issue presented by stare decisis when a precedent is challenged. In a draft Essay that I’ve written about Jack’s other new book (on framework originalism), I noted that one of our greatest acts of constitutional redemption came from racist Southerners who ratified the Fourteenth Amendment with faith that they would one day restore the “real” Constitution based on white supremacy. And their faith was validated (for a pretty long time) through Jim Crow. The finality of the Fourteenth (and Fifteenth) Amendments was not taken for granted. Was this legitimate or desirable?
The point is that Jack’s emphasis is on how the possibility of redemption maintains our allegiance to constitutional commands issued long ago. That possibility, though, is also destabilizing. All legal systems need some finality that goes beyond adopting a rule of recognition. I’m not clear how that fits into this theory.
posted by Joey Fishkin
First, thanks to Danielle and Jack for the opportunity to participate in this symposium. I’m happy to do it because I think this is a fantastic book.
Among many other things, this book offers a particularly well-developed story about the role that stories play in constitutional argument and constitutional change. I thought I’d start there, because that piece is at the foundation of the argument of the book. Also it has the fun property that once you start thinking in its terms, you start seeing examples everywhere. Indeed you see these moves even in debates that are not, explicitly, constitutional debates.
And this raises an interesting question: to what extent is this book about faith in the Constitution, and to what extent is it, instead, about faith and redemption in something like the broad political/constitutional project of the United States? It is hard to separate these things. But let’s look at places where the two might plausibly come apart. Jack (citing Mark Graber) notes that in recent years, among liberals, the canonical example of a policy problem the constitution does not address is the distribution of income and wealth (132-33). So let’s begin with the stories we tell about fiscal policy.
Last April, President Obama made a speech on the deficit and fiscal policy in which he offered a defense of Medicare, Medicaid, and unemployment insurance, along with Social Security. He said: “From our first days as a nation, we have put our faith in free markets and free enterprise as the engine of America’s wealth and prosperity. More than citizens of any other country, we are rugged individualists, a self-reliant people with a healthy skepticism of too much government. But there’s always been another thread running through our history -– a belief that we’re all connected, and that there are some things we can only do together, as a nation.” After discussing such collective projects as schools, science, the military, and the interstate highway system, Obama argued that Medicare, Medicaid, unemployment insurance, and Social Security were part of this “American belief that we are all connected,” which is in part a “conviction that each one of us deserves some basic measure of security and dignity.” He argued, “We are a better country because of these commitments. I’ll go further – we would not be a great country without those commitments.”
Rick Santorum sharply criticized these comments in a speech in June. Santorum quoted the lines above and responded, “Ladies and gentlemen, America was a great country before 1965!” When the applause died down, he continued: “Social conservatives understand that America is a great country because it was founded great. Our founders, calling upon, in the Declaration of Independence, the Supreme Judge, calling upon Divine Providence, said what was at the heart of American exceptionalism. In the Declaration of Independence it said ‘We hold these truths to be self-evident, that all men are created equal and endowed by our Creator with certain inalienable rights.’ You see, our founders understood that we were going to take the principles, Judeo-Christian principles, that had been out there for centuries, and we were going do something radical. We were actually going to found a government upon these principles.”
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.
posted by Josh Chafetz
It’s an honor to be here, commenting on Jack’s hugely impressive and erudite work of constitutional scholarship. If you haven’t read it yet, the most useful thing I can say to you is to stop reading what I have to say and go read what he does. I especially admire his discussion of the role of narrative in constitutional argument, and it is that part of the book that I’d like to focus on. I should say at the outset that I don’t have any criticisms—and I may not even have any comments!—to make. Really, what I have are some questions. (And I don’t mean that in the standard, law professor-y “I’m going to make my comments and then add a question mark at the end” sense. I really don’t have answers for these questions.)
Jack lays out his own narrative of constitutional development at pages 18-23. It is a powerful narrative, one that describes American constitutional development as a slow and always-incomplete attempt to redeem the promise of the Declaration of Independence, which Jack understands as embodying an attack on “the social structure of monarchy” (p. 23), or, even more ambitiously, a “demand for social equality” (p. 22). There is a great deal to find appealing in this narrative, and its brevity should not lead us to underestimate its potency (as, I think, Adrian Vermeule did in his review of the book).
Others may wish to comment on the lessons Jack draws from this narrative, or even on its historical accuracy. But that’s not my interest here. Instead, I’m interested in why the narrative’s claim to historical accuracy is important in the first place.