Category: Constitutional Redemption Symposium

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FAN 16.2 (First Amendment News) Democracy 21 Responds to RNC Lawsuit

Press Release, May 23, 2014

RNC Challenge to Political Party Soft Money Ban Filed Today in Federal District Court Has Already Been Rejected Twice by Supreme Court

Statement by Democracy 21 President Fred Wertheimer

The RNC filed a lawsuit today in Federal District Court in Washington, D.C. challenging for the third time the ban on national parties raising and spending unlimited contributions, or soft money. They have lost this same argument twice before in the Supreme Court.

The RNC lost this argument in the Supreme Court in the McConnell case in 2003 and lost again in the RNC case in 2010, decided after the Citizens United decision.

In the 2010 RNC case, Chief Justice Roberts and Justice Alito joined in the 6 to 3 Supreme Court decision that summarily upheld the lower court decision reaffirming the constitutionality of the soft money ban.

The RNC cannot get around the soft money ban and the Supreme Court decisions upholding the ban by the use of blue smoke and mirrors.

The RNC has no basis for bringing this lawsuit and apparently wants to obtain three strikes before they will accept the fact that they cannot raise and spend soft money.

The RNC is attempting to sell an illusion that the RNC can raise and spend soft money without raising and spending the soft money that the law, upheld by the Supreme Court, prohibits the RNC from raising and spending.

The RNC is also attempting to make believe that the two previous losses they had in the Supreme Court in challenging the soft money ban somehow aren’t relevant to this case and the RNC’s desire to raise and spend soft money.

Representative Chris Van Hollen intervened in the 2010 RNC case to defend the ban on political party soft money and he has indicated he will move to intervene in the RNC case filed today.

Democracy 21 lawyers will join with others in representing Representative Van Hollen in this case, as we did in the 2010 RNC case.

Federal law prohibits the national parties from raising contributions above the federal contribution limits, or soft money, and from spending any such funds.

Federal law also prohibits federal officeholders and national party officials from soliciting any such soft money contributions.

Contact Kathryn Beard, Democracy 21 @ kbeard@democracy21.org

 

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Evaluating Constitutional Narratives

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.

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Faith and Redemption

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.

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Treating Elite Support as an Empirical Question

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.

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Constitutional Televangelizing

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.

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Redeeming Potholes

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.

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From Text to Performance Tradition

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.

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Standards of Redemption-Not Hero Worship

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.

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The Obligations of the Faithful in the Constitutional Redemption Project

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.

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Constitutional Protestantism or Constitutional Televangelism

I appreciate Doug taking up questions from my earlier post and I think he’s right about the central role elites play in interpreting constitutional texts.

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 More