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Category: Constitutional Redemption Symposium

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Constitutional Redemption: Narratives, Historical and Fictional

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.

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Constitutional Redemption

Jack M. Balkin’s profound book, Constitutional Redemption, develops an aspirational interpretation of the Constitution. The presentation is not nostalgic; rather, Balkin provides a hopeful picture of an evolving form of constitutional interpretation. His methodology requires the reexamination of existing social morality and political forms but not an abandonment of the Constitution’s commitments to standards and principles of justice.

Balkin’s narrative of redemption speaks of unfulfilled promises made at the nation’s founding. These promises, he argues, should guide reform. Improvement, amendment, and advancement are not merely results of blind flux, but concerted efforts to achieve the “promise[s] of the past.” He neither seeks nor engages in constitutional idolatry, but a belief that the ideals of liberty and equality imbedded into the document can mold public opinion against injustices that violate them.

Such a grand vision is based on faith that the Constitution’s flexible framework will be instrumental to the achievement of social justice. Balkin’s perspective is positioned with the leanings of scholars like Mark Tushnet, , Sanford Levinson, William Eskridge, and Larry Kramer, who regard social and political movements to be important actors for “shifting the boundaries” of what are considered to be reasonable and plausible alternatives to existing inequalities. According to Balkin’s perspective, the effect of civil rights groups on our understanding of the Constitution is reflected in cases like Brown v. Board of Education, Reed v. Reed, and Lawrence v. Texas. These decisions, indeed, bear witness to the ability of litigation groups–like the National Association for the Advancement of Colored People, Women’s Rights Project, and the Lambda Legal Defense and Education Fund–to integrate visionary popular activism into a constitutional framework compelling enough to alter Supreme Court decisionmaking.

I believe that in Balkin’s redemptive vision of constitutional interpretation lies, arguably, the central paradox of American history. The nation was built on the principled foundations of the Declaration of Independence, which recognizes universal inalienable rights like life, liberty and the pursuit of happiness, but from its inception the United States failed to fully carry those ideals into law. The Declaration too, I argue in a forthcoming book, offers the sort of visionary (or in Balkin’s language redemptive) possibilities that drove Abraham Lincoln’s vision of federal government and Martin Luther King, Jr.’s advocacy of reform.

While the founding document spoke in terms of liberal equality, not quite twelve years after the Declaration was signed (on June 21, 1788 when New Hampshire became the ninth sate to adopt the Constitution) the Constitution’s notorious protections of slavery became binding. That is, the Constitution was not merely a step forward in the establishment of binding institutions pregnant with redemptive possibilities but also a document that compromised some of the ideals of the Revolution. Even the ratification of the Reconstruction Amendments did not lead to immediate redemptions of those original ideals. But I believe that Balkin is correct, that the Constitution just as its legal forerunner, the Declaration of Independence, contains the necessary kernels of wisdom that allow for the national and human evolution of understanding about the significance of due process, equal protection, and the pursuit of happiness.

Balkin correctly points out that the many failures to live up to the nation’s ideals do not diminish the value of anti-classist promises the nation made to improve of people’s welfare. His redemptive model helps explain why abolitionists could condemn the nation for its gross failures while clinging to its ideals. The original documents were useful for those who condemned the nation’s existing practices and for those who sought a jubilaic plan for its reform.

A letter published in abolitionist Frederick Douglass’s newspaper, The North Star, mocked the Declaration of Independence’s assertion that “all men are created equal.” The author insisted that the document should be rewritten to say, “All men are created equal; but many are made by their Creator, of baser material, and inferior origin, and are doomed now and forever to the sufferance of certain wrongs–amongst which is Slavery!” To blacks, the writer went on to say, the Fourth of July was “but a mockery and an insult.” To the advocates of slavery, he surmised, “liberty and equality” meant no more than the noises of firecrackers, raised flags, and other raucous festivities. J.D. “The Ever-glorious Fourth”, North Star (Rochester, NY), July 13, 1849.

But there was more to be said about America; it was not merely a composite of its failures but also a set of affective and effective norms. Despite the nation’s failures, the Declaration of Independence committed the country to liberal equality. In this context, an ex-slave’s daughter described her father’s awakening when he heard the Declaration read aloud. From that moment, she wrote, “he resolved that he would be free, and to this early determination, the cause of human freedom is indebted for one of its most effective advocates.” Biography of an American Bondman, by His Daughter 15-16 (1856). Her father, William Wells Brown, successfully escaped in 1834, later to become a prolific novelist and abolitionist lecturer.

The author of Douglass’s paper reflects the failure to live up to the substance of freedom. But Brown’s experience speaks to the possibility of unfulfilled aspiration to inspire and guide individuals, and perhaps even the nation, to liberal equality. This ability to animate hope even in the course of culturally accepted injustice demonstrates the Constitution’s redemptive quality, providing visionary revitalization of existing institutions and leading to social beneficial revision.

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Jack Balkin’s Constitutional Redemption: A Much-Needed Dose of Optimism

I want to thank Danielle Citron for inviting me to participate in this symposium. And I want to thank Jack Balkin for giving me the great honor of commenting on his wonderful book. In Constitutional Redemption, Balkin offers an important, insightful, and useful corrective to the pessimism that pervades a significant amount of legal scholarship on the left. His constitutional optimism suggests the potential and possibilities of constitutional mobilization.

Balkin’s book offers incredible amounts of rich material. He provides a descriptive account of constitutional change, a normative vision of democratic culture, and an interpretative theory aimed at fulfilling the Constitution’s promises. In showing how social movements believe in and agitate for constitutional redemption, Balkin redeems the Constitution for legal scholarship, reminding us that the Constitution serves both as a potent symbol of social change and as a vehicle for continued reform. In this commentary, I first want to focus on why I think Balkin’s descriptive account is accurate by pointing to two essential moves I see him making. I then want to show Balkin’s theory in action in the marriage equality context as a way to translate his analysis into a useful lesson for liberals and progressives.

To my mind, two key moves allow Balkin to see what many others miss and thereby to bridge the often vast divide between constitutional theory and on-the-ground social movement activity. First, Balkin decenters adjudication, and in a sense detaches constitutional claims-making from constitutional decision-making. Of course, Balkin discusses at great length the decisions of the Supreme Court on various significant issues – from race to abortion to labor – and these decisions are crucial to an account of social change. But he analyzes adjudication through the lens of political and movement mobilization, showing the evolution of constitutional principles through the symbiotic relationship among courts, culture, and social movements. (Balkin, p. 63)

By deemphasizing adjudication, Balkin suggests that the most significant effects of constitutional claims emerge from the claims-making process itself. The claim is not merely instrumental – to convince a judge to grant some right or benefit to the plaintiff. Rather, the claim may be transformative and may articulate a vision that holds power regardless of judicial validation. In fact, when the judge validates the plaintiff’s claim, it is often because that claim has already affected the culture more generally.

Balkin’s second key move, which follows from the first, is his contextualization of courts within a broader political and cultural world. (Balkin, pp. 97-98) For Balkin, constitutional claims-making is political and moral claims-making. (Balkin, p. 118) Through this lens, courts cannot (and generally do not) go it alone. Instead, courts participate in an ongoing dialogue with other social change agents, including social movements and political actors.

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Introducing the Constitutional Redemption Symposium

It is an honor to introduce Jack Balkin and the participants in our online symposium on Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press 2011).  From tomorrow through Thursday, we will be discussing Balkin’s important new book, which builds on themes of faith, narrative, and redemption.

Constitutional Redemption describes constitutional interpretation as a dynamic project, one of mistakes, evil, revision, and reform.  Social movements, citizens, lawyers, politicians, and judges are pivotal players who “nudg[e] the constitutional-system-in-practice closer to their preferred interpretations of the Constitution.”  Their participation is a “necessary, if not sufficient, condition for producing a respect-worthy system.”   Through social movement contestation and political agitation, some practices, such as segregation, sex discrimination, or sodomy laws, lose their legitimacy “in the minds of the public,” rendering views that were once thought reasonable and acceptable to be “deemed unreasonable or even off-the-wall.”  A story of improvement “underwrites Constitutional legitimacy.”  And “each of us has the opportunity and the responsibility to decide what the Constitution means, and to decide whether public officials — including members of the Supreme Court — have been faithful to that meaning.”

Constitutional Redemption contends that the project of constitutional interpretation warrants, and perhaps demands, our committed engagement and belief.  Balkin’s theory of framework originalism suggests that we must have faith that the Constitution’s promises can be redeemed, that our constitutional system can be made a “more perfect union.”  This leap of faith is a gamble because the future of constitutional law and politics is uncertain, and we can’t be sure how the future will judge the present.  But, as Balkin explains, the “constitutional story offered in this book argues that redemption is possible–that is its statement of constitutional faith–but only if the American people choose well and act well.”

Constitutional Redemption raises many provocative and important questions.  Can we have faith in the project of constitutional interpretation if its boundaries are ever changing, many times for the worse, and there’s little assurance that past evils won’t re-emerge triumphant?  Are all social movements worthy of the project, even if they seek to dismantle constitutional rights and guarantees?  Do citizens have a robust responsibility to engage in the constitutional project as part of their faith?  Is all of this freedom of interpretation and change frightening, and might some be deterred from believing in the Constitution’s redemptive power due to their fear of what could happen without fixed, enduring principles?  Is the best version of originalism one based on the public meaning of the text and its principles rather than on the way the framing generation would have expected the Constitution to be applied?

To discuss these and many other issues, we have invited an exciting group of constitutional scholars:

Josh Chafetz

Joseph R. Fishkin

Mark Graber

Bernadette A. Meyler

Douglas NeJaime

Alexander Tsesis

Emily Zackin

We are thrilled to have Jack Balkin aboard to participate in the discussion of his terrific book.  My co-bloggers will be joining the conversation as well.  We are excited for the discussion to begin.  Welcome!

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Exciting Upcoming Symposium on Jack Balkin’s Constitutional Redemption

We are thrilled to announce that in early August we will hold an online symposium on Jack Balkin’s book Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press 2011).  From August 1 to August 4, an all-star cast of constitutional scholars will join our crew to discuss Balkin’s important book, including:

Jack M. Balkin

Josh Chafetz

Andrew Coan

Joseph R. Fishkin

Mark Graber

Bernadette A. Meyler

Douglas NeJaime

Alexander Tsesis

Emily Zackin

The Concurring Opinions crew plans on joining the discussion, including Lawrence Cunningham, Gerard Magliocca, Frank Pasquale, and Daniel Solove.  I’m hoping this post gives you a chance to read Professor Balkin’s book.  Constitutional Redemption is a rewarding read.  It builds on themes of faith, narrative, and redemption, arguing that what makes the U.S. Constitution legitimate is our enduring faith that the Constitution’s promises can someday be redeemed, that our constitutional system will be made a “more perfect union.”  As Harvard Press’ description of the book explains:

Balkin argues eloquently that the American constitutional project is based in faith, hope, and a narrative of shared redemption. Our belief that the Constitution will deliver us from evil shows in the stories we tell one another about where our country came from and where it is headed, and in the way we use these historical touchstones to justify our fervent (and opposed) political creeds. Because Americans have believed in a story of constitutional redemption, we have assumed the right to decide for ourselves what the Constitution means, and have worked to persuade others to set it on the right path. As a result, constitutional principles have often shifted dramatically over time. They are, in fact, often political compromises in disguise.

What will such a Constitution become? We cannot know. But our belief in the legitimacy of the Constitution requires a leap of faith—a gamble on the ultimate vindication of a political project that has already survived many follies and near-catastrophes, and whose destiny is still over the horizon.

Constitutional fidelity recognizes that we are imperfect, that interpretations can be evil, but that our faith, our bet, in its possibilities is worth it.  It’s a brilliant book, one that reminds me of Antoine de Saint-Exupery’s Wind, Sand, and Stars when he writes (I’m paraphrasing here) that love does not consist of gazing into each other’s eyes but outward together in the same higher effort.  In this way, the Constitutional project is a leap of faith of citizens gazing outward, but bound and building on the past, in the same higher effort of a more perfect union.  Read it and we will be back for more in August.