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Category: Constitutional Redemption Symposium

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Truth and Story Telling

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.

Material Foundations of Constitutional Redemption

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.
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Losing Our Religion

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.

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Constitutional Change and the Problem of Legitimacy

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?

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The Redemptive Role of Founding Principles

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.

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Constitutional Text and the Role of Elites

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.

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Constitutional Redemption and Finality

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.

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What kind of constitution is the subject of this book?

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.”

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Originalism as History and Story-Telling

“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.