Posted: December 5, 2011
hough the ostensible subject of this deeply strange book is the interpretation of the Constitution of the United States, its rhetoric is passionately religious. It exhorts us to believe that the American Constitution is capable of "redemption." It needs redemption because our Constitution as presently understood is profoundly unjust—a little less flagrantly than when it was interpreted to countenance slavery and the subordination of women, but intolerably unjust and sinful nevertheless.
The original sin requiring the country to redeem its national charter is the failure to embrace the crusading, pervasive egalitarianism—political, economic, and social—that its author ascribes to the Declaration of Independence. This vision of a nation committed to pay any price and bear any burden for the sake of ever greater equality appears to be the only thing he takes from the Declaration, indeed from the founding as a whole. Constitutional Redemption says nothing about the founders' broader natural rights philosophy, and next to nothing about the rights to liberty or property, or the limitation of governmental power, subjects which continuously preoccupied America in the late 18th century.
Jack Balkin's truncated and deformed view of the founding is not his argument's only weakness. Although wrathful about modern America's injustices, Redemption's specific indictments are few and scattered—income inequality, social stratification, excessively powerful corporations, and the equal representation of unequally populous states in the Senate top its list of offenses against equality. Other charges sometimes fly over the top. What is one to make of a distinguished Yale professor of law who decries judicial holdings "that homosexuals have no constitutional rights that heterosexuals are bound to respect..."? (Emphasis added.)
It should be noted that Balkin's is not the first major treatment of American constitutional law to explain the author's disaffection for the American polity with the help of religious terminology. Balkin's friend and sometime co-author, University of Texas law professor Sanford Levinson, published Constitutional Faith in 1988. "Twenty years later," Balkin explains, "Levinson gave up his constitutional faith and has since become a modern-day Garrisonian," because "hardwired" aspects of the Constitution—such as the presidential veto, two senators from each state, and the electoral college—render the system "incorrigibly undemocratic," making radical reform impossible. Apparently, for Levinson as for the abolitionist William Lloyd Garrison, the Constitution now stands revealed as a compact with hell.
Balkin, however, has not lost his faith, insisting redemption is possible. At one point he refers to himself as an "aspirationalist" who accepts that "our institutions and our Constitution always exist in a ‘fallen condition.'"
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If faith in an egalitarian constitutional redemption is the first pillar of Balkan's constitutionalism, historicism is the second. Not to be confused with a commitment to attaining a broad yet subtle understanding of the past's thoughts and deeds (witness the caricature of the founding on which the book is based), Balkin's historicism is a sunny Hegelianism. The contours of a constantly evolving Constitution expand to encompass new meanings for succeeding generations—sometimes by amendment, sometimes by judicial interpretation.
Above all, we must beware of being hobbled in our development by the "practice of constitutional fidelity." The snare of that fidelity
makes it seem natural for us to talk and think about justice in terms of the concepts and categories of our constitutional tradition. In this way, the practice of constitutional interpretation can actually skew and limit our understandings about justice, because not all claims are equally easy to state in the language of that tradition. We might call this phenomenon the stunting of political imagination.
It is a testament to the fertility of professor Balkin's own constitutional imagination that over the past year he has appeared from time to time in the public prints arguing: 1) That the original understanding of the word "commerce" in the Commerce Clause meant all "social interaction." This being so, he concluded, the insurance mandate of Obamacare was clearly within the power of Congress to impose. 2) That the specifically delegated powers of Article I, Section 8 were understood by the members of the Great Convention as operationalizing section VI of the old Virginia Plan, which provided that the new Congress would have power to legislate in "all cases involving the general interest of the Union," or cases where the "states are separately incompetent," thus creating the heart's desire of all real progressives, a national government of general jurisdiction. Not only is the evidence for such an understanding within the Convention thin to non-existent, if it had existed it would surely have doomed the new charter to defeat in the ratification process. 3) That Section 4 of the 14th Amendment, providing that "the public debt of the United States...shall not be questioned," which was put in place in 1867 to insure that no future Congress, controlled by returning Southern Democrats, could renege on obligations incurred by the Union in prosecuting the war against the Confederacy, could now be understood as authorizing President Obama unilaterally to authorize Treasury borrowing beyond that allowed by the debt limit statue.
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Of course, Balkin understands that not all constitutional change is conducive to greater "democracy, fairness and justice." "If conservative social movements continue their ascendency and the conservative wing of the Republican Party gains and maintains its political hegemony," he worries, "constitutional common sense will be altered for good...." On the whole, however, he looks forward to a continuation of what he sometimes calls, without irony, "The Great Progressive Narrative" of American improvement.
Just how is constitutional evolution supposed to operate when our political imaginations are not "stunted"? Lawyers, not surprisingly, are central to the process, creating constitutional law through advocacy that reshapes the "Off-the-Wall, On-the-Wall...Spectrum of Plausibility." Exotic ideas initially advocated by a few extremists-that the First Amendment's establishment clause prohibits voluntary prayer in public schools, for example—end up as "part of constitutional common sense, and those who doubt them are regarded as reactionary and themselves as off-the-wall." And although it is tiny minorities of elite lawyers who manage these imaginative journeys along the "spectrum of plausibility," Balkin emphasizes they must be supported by social movements that "open up space for new forms of constitutional imagination and new forms of constitutional utopianism...."
But of course the social movements aren't all that social, with agendas set by small numbers of self-selected activists rather than the broad involvement of engaged citizens. To take just three constitutional innovations of the past half-century of which Balkin apparently approves, neither the school prayer decisions, nor the extremely libertarian free-speech doctrines minted after 1957 (Roth v. United States), nor the key criminal process innovations (Mapp v. Ohio ,Miranda v. Arizona ) had widespread popular support when they came down, and little has changed since. (On this point see Public Opinion and Constitutional Controversy, edited by Nathaniel Persily, Jack Citrin, and Patrick Egan .)
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The strangest part of the book, however, is its final chapter, "How I Became an Originalist." Balkin, obviously an enthusiastic believer in the "living Constitution," has no use for real originalists, who insist that the public meaning of constitutional provisions when adopted should discipline and constrain the ways in which those provisions are applied today. Balkin rightly sees such folk as participating in an insurgency against the constitutional consensus of the latter 20th century, and believes they are insufficiently reconciled to the New Deal, the civil rights revolution, and the emancipation of women. The common sense of originalism makes it broadly appealing to Americans, creating a grave impediment to Balkin's revolution from above. Ordinary Americans, when they think about it, take the Constitution seriously, opposing radical devaluations of its text by the living constitutionalists.
Balkin's solution is to pledge allegiance to the Constitution in a manner that allows him to make it say whatever he wants it to say. His "framework originalism" extends the efforts of apologists for the vaulting innovations of the Roosevelt, Warren, and Burger Courts who invoke the words of the Constitution at meaningless levels of abstraction in order to defend judicial adventurism.
He will go no further than to accept the "original semantic meaning" of the Constitution's words, which signifies something, of course, but not very much. Framework originalism rejects "how people at the time of adoption would have intended or expected the text to be applied, or how broadly or narrowly they would have articulated the principles and standards found in the text" as a source of meaning, thereby excluding everything important to establishing real, useable meaning. Semantic signification is minimal; useful meaning is always in the examples. Unless constitutional provisions can be articulated at some respectable level of specificity, they cannot constrain the future—which, after all, is what a constitution exists to do.
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In the end, the problems with Balkin's constitutionalism resolve themselves into one—that the Constitution of the United States, and those of the states, presuppose a particular kind of polity and society, and this conception is not infinitely plastic. Certain ideas—thoroughgoing governmental regulation of campaigns and elections, for example—must alwaysremain "off-the-wall." And though we will endlessly debate the proper boundaries between public and private spheres, we begin from the axiom that a limited Constitution—one that created a government whose powers are few and defined—means the heavier burden of proof will be on those who wish to expand its powers. Balkin can't or won't grasp that a permanent campaign against every manifestation of inequality necessarily means the permanent subversion of a free society's attempt to govern itself successfully. A war against inequality in the name of exotic, protean notions of "justice" or "fairness" betrays rather than redeems our constitutional order.