by Jack M. Balkin. Cambridge, MA: Harvard University Press Press, 2011. 298 pp. Hardcover. ISBN: 9780674058743.
Reviewed by Beau Breslin, Dean of the Faculty, Skidmore College, bbreslin [at] skidmore.edu.
Refreshing is the expert who admits to intellectual humility. Jack Balkin, surely one of the foremost voices in constitutional law and theory today, has done so in Constitutional Redemption. Indeed, the title of the book suggests a double entendre: at once Balkin is trying to redeem the text from its many misinterpretations and misunderstandings, while at the same time trying to redeem himself from a journey of intellectual discovery that has not always been smooth. Constitutional Redemption is a unique contribution to the field of constitutional thought: it is both an intellectual force and a personal journey. As such, it is worth our attention.
To describe Balkin’s manuscript it is probably best to begin at the end. His final chapter is entitled, “How I Became an Originalist.” In it, Balkin describes his own constitutional taxonomy. He claims he is not a “living constitutionalist,” but rather an “Originalist” at heart. The problem, for Balkin at least, is that “Originalism” is so tied to political conservatism that he is forced to explain carefully what he means. The political landscape has made it so that the term “Originalism” carries a certain amount of baggage; Balkin is thus reluctant to claim ownership. But own it he must, and so his solution is to recast Originalism in a way that more closely aligns with a concept of constitutionalism that allows for evolution. Make no mistake: Balkin believes that the Constitution adapts to changing times – thus suggesting a “living constitutionalist” sensibility – but some things he says are fixed. The result is “framework originalism,” a theory that insists the framework of the Constitution has a fixed meaning, but that the questions and decisions that arise from the framework are subject to evolutionary principles. In his words, “the framework consists of the semantic meanings of the words in the text (including any generally recognized terms of art) and the Constitution’s choice to create a distribution of rules, standards, and principles, while remaining silent on other questions” (p.228). Balkin is thus an “Originalist” insofar as the framework is understood as remaining steadfastly in place. Of course, it is the meaning of these “other questions” that remains fiercely contested.
Which takes us back to the beginning of the book. It is fitting that Balkin chooses to dedicate Constitutional Redemption to his friend Sanford Levinson, the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair at the University of Texas Law School. Their works intersect in so many ways. In a sense, the reader gets a feeling that Balkin is speaking directly to Levinson through this book, especially given that [*397] the topics of constitutional faith and constitutional fallacy appear repeatedly. Take constitutional faith: Levinson, a frequent collaborator with Balkin, was instrumental in shedding light on the importance of constitutional faith. You see, for Balkin, the Constitution must generate a certain degree of faith by the public for it to be successful. “The legitimacy of our Constitution,” he writes, “depends, I believe, on our faith in the constitutional project and its future trajectory” (p.2). More to the point, citizens must have faith in the promise of good constitutionalism, in the fact that the Constitution – an “agreement with hell, flawed [and] imperfect,” says Balkin – can be redeemed. They tell stories about the Constitution that help to build confidence in the document, leading eventually to its redemption. The Declaration of Independence, for example, is the protagonist of one of those national narratives. The story of our birth is one that is told over and over again, and one that identifies broad promises that inform our political actions. Our faith in the Constitution is tied to our belief in those stories.
The legitimacy of the Constitution is also dependent upon the stories we tell. In chapter 3 – “Legitimacy and Faith” – Balkin explores the intersections between a constitution’s legitimacy and a people’s narrative connection to our past. The stories we tell are meant to solidify the answers to those “other questions” he references, the ones he is so careful to say cannot be easily answered by fixing their meaning. The Constitution, Balkin says, is interpreted by “reasonable” people, ones who do not exist at the margins of political society. The process of moving constitutional arguments from “off-the-wall” to “on-the-wall” – a process he describes as characterizing constitutional development in the United States – is essentially the evolution of unreasonable constitutional interpretation to reasonable interpretation. The Constitution’s meaning is thus found on the plane of a shifting landscape; constitutional reasonableness is an ever-changing, fairly elusive concept. In a sense, the answers to questions about abortion, same-sex marriage, and the like, evolve as “reasonable” people compete for interpretive dominance.
Balkin is convinced that “the story that underwrites constitutional legitimacy is a story of improvement, not stasis. Constitutional redemption requires changing the reason of law, so that the formerly frivolous becomes the currently canonical” (p.91). The problem arises when our support for the Constitution looks more like idolatry. He explores that possibility in chapter 4. In chapter 5 he returns to a discussion of the redemptive nature of our constitutional project, this time examining in more depth its fallibility and promise. He insists that constitutional faith breeds a certain fidelity to the Constitution and the polity. And that is a good thing. As he writes, “the practice of constitutional fidelity, like fidelity to other institutions, has important psychological effects on the self. To be faithful to an institution is to enter into a world, to accept a certain way of talking and a certain discipline of thought” (p.126). It is, to use Robert Cover’s apt phraseology, to “inhabit a normative universe.”
Chapter 6 represents a bit of a departure from his earlier exegesis. The chapter is a bit more tangible and concrete, a bit less theoretical. It reads a little like a case [*398] study. Balkin explores the development of our concept of equality in this chapter, focusing primarily on what he describes as the shift from a “tripartite theory of citizenship” where “constitutional citizenship divided the rights of citizens into three parts – civil, political, and social – and held that equal citizenship meant equality of civil rights” (p.139) to a “model of scrutiny rules,” which characterizes the current state of constitutional citizenship. Brown v. Board of Education was an important symbolic moment in the shift, of course. Indeed, Brown signaled the formal end of the tripartite approach and the beginning of the scrutiny rules model. The avoidance of classifications – especially based on race – was (and is) a redemptive interpretation of the Constitution, an interpretation that represents a move from an “off-the-wall” understanding to an “on-the-wall” understanding. But Balkin is quick to remind us that it is not all roses: to be sure, the tripartite approach may be discredited, but the victorious scrutiny rules approach has introduced new and disturbing methods of social stratification.
What is interesting is the way in which Balkin examines constitutional development through the prism of competitive storytelling. In chapter 6, he describes the development of civil rights; in chapter 7, he takes up the changing attitudes towards Lochner v. New York. By catapulting back and forth through time, Balkin is able to show that Lochner was a product of the legal culture in which it was decided. Unlike other scholars, however, Balkin is not convinced that Lochner was correctly decided at the time. In a sense, that question is not the purpose of this chapter, though; rather the purpose is to show that constitutional culture, which is a critical part of the narrative we tell about our Constitution, invites us to understand the text in very particular ways. Lochner provides us with another vehicle to help us comprehend constitutional redemption.
Even as the book clearly advances the continuing dialogue around constitutional theory, constitutional interpretation, and constitutional development, Constitutional Redemption does not address some important issues. There is not much, for example, about the ways in which amendments can alter (or even halt) the evolution of constitutional meaning. Amending the text has the capacity to abruptly end the conversation regardless of how close we are to realizing an “on-the-wall” understanding. Similarly, Balkin does not fully unpack the particulars of “framework originalism” (a task he takes up in his next book, Living Originalism, which represents Part II of his thinking). He gives us a bit of a teaser at the end of Constitutional Redemption, but we are left wanting.
That being said, Constitutional Redemption exhibits most of the virtues of a powerful and enduring work. It has intellectual drama: those of us who have followed the debates about the call for a new constitutional convention may be relieved that Balkin has decided to fight back in favor of our current constitutional text. (We can now wait to see what Levinson and others say in response.) It demonstrates intellectual wisdom: the author’s understanding of the subtleties and nuance of constitutional theory is on full display here. As I said earlier, it also reveals [*399] intellectual humility: Balkin states quite clearly that his journey towards “originalism” has not always been linear. And it exhibits hope: Balkin is convinced that this Constitution can be redeemed and, in fact, has the power to redeem us. That alone is worth the investment. Jack Balkin has faith in America’s constitutional experiment; in many ways his book inspires us to a similar station.
Brown v. Board Of Education 347 U.S. 483 (1954).
Lochner v. New York 198 U.S. 45 (1905).
Copyright 2012 by the Author, Beau Breslin.