LAW JUNE 8, 2011
by Jack M. Balkin
Harvard University Press, 304 pp., $34.95
THE COVER OF Jack Balkin’s new book perfectly captures its temper, and that of many progressive constitutional theorists. Dark clouds swirl over the land, while in the distance, beyond the mountains, a narrow band of sunlight gleams. But is it the rising sun or the setting sun? We must have faith, Balkin argues, that the promises of the Constitution will someday be redeemed, and a new dawn of justice will blaze forth.
Balkin is a prolific constitutional scholar at Yale Law School, and one of the principal figures in a recent movement that advocates a progressive approach to constitutional interpretation called “framework originalism”—the notion that the original meaning of the Constitution, understood at a sufficiently abstract level of generality, supports the ongoing project and aims of left-liberal constitutionalism. Although a chapter here describes Balkin’s version of originalism, he has another book forthcoming on that subject, and the main thrust of this book is different. The basic argument, repeated frequently, is that the legitimacy of the Constitution presupposes and requires that its interpreters—not only officials and legal theorists, but the citizenry at large—must have faith that the Constitution’s promises of justice can eventually be redeemed. And this leap of faith is inevitably a gamble, because the future course of constitutional law and politics is always uncertain, and no one can know how the future will judge the present.
Indeed, the future may be worse, according to our own progressive lights; perhaps the actions we take to improve matters, to nudge it closer to our ideals, will themselves make it worse (what economists call the problem of second-best). The future may come to think that the progressive aims on which we congratulated ourselves were actually pernicious, or that we had moral blind spots about radical evils. The future may think that our generation was complicit in the unforgiveable, perhaps because we ate animals, or held private property. A Yale law professor with impeccable progressive credentials may eventually be lumped together with all the other meat-eaters and homeowners, and nothing else about his public career will matter.
To his credit, Balkin is never complacent about his progressive commitments. What he argues is that the practice of interpreting the Constitution, and pursuing justice through the processes of constitutional politics, presupposes that the interpreter has fidelity to the Constitution’s project, and has faith that the course of constitutionalism will eventually lead to the Promised Land. Balkin distinguishes this view from several alternatives and competitors: “The constitutional story of this book is not the Calvinist story in which the future is certain but we do not know whether we are part of the elect; nor is it the Marxist story in which, despite history’s travails, the achievement of a just social order is assured. 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.”
But good choices and good actions, Balkin makes clear, themselves depend upon a prior commitment to constitutional fidelity. In this way Balkin is a constitutional Protestant who follows Luther’s motto of “justification though faith alone,” and believes that the obligation of constitutional fidelity falls upon all citizens, not just a priestly caste. Throughout his book, Balkin generously credits famous work by his frequent co-author, Sanford Levinson of the University of Texas, as the ultimate source of these ideas. Levinson’s book Constitutional Faith, which appeared in 1988, pioneered two claims that underpin Balkin’s argument: the sociology of religion provides a useful analogy or lens through which to understand the sociology of legal movements; and constitutional actors must take a leap of faith despite their inability—or because of their inability—to see a clear path from the injustices of the current constitutional order to the heaven of progressivism.
Balkin’s work is never boring, in part because of his felicitous style. Although the content of his ideas can be vague, their vagueness is at least clearly expressed. The book is lively, and it perfectly captures the premises and mood of the progressive constitutionalists who dominate Yale Law School and, to a lesser extent, the world of constitutional theory. But Constitutional Redemption suffers from two significant problems. The first is that people cannot be argued into having faith. (Richard Posner has made an analogous point about academic moral theorizing.) Anyone who lacks faith in the redemptive promise of the Constitution will not suddenly develop it from reading Balkin’s arguments. What is required, rather, is a conversion experience that reconfigures one’s political soul along progressive-legalist lines. Such an experience might come from encountering a political prophet, but it will not come from rational academic argumentation of the sort that Balkin mainly offers. Prophets convert their targets above all through charismatic deeds, rather than words; when they use words, they offer parables and stories rather than exegeses of John Rawls and Frank Michelman, as Balkin does. Balkin talks about parables and stories but does not himself offer many of them. For the most part, he mentions rather than uses the techniques of conversion.
The book careens dangerously between external and internal perspectives; paragraphs and even sentences slip between claims about constitutional practice and claims internal to that practice. From the standpoint of the analyst speaking to other analysts, it is perfectly sensible to observe that the actors within the constitutional system who work to make the Constitution more just, according to their lights, must have faith in its eventual capacity to embody justice—using “must” in an inferential rather than deontic sense. But that observation cannot coherently be offered as an exhortation to actors within the system. If they lack faith, and cannot be argued into having it, it is also true that they cannot generate faith within themselves by an act of will, and telling them to do so is fruitless.
There is a familiar issue here, stemming from Pascal and other religious thinkers, about whether one might instill faith in oneself indirectly by practicing the outward observances that faith requires, in the hope that genuine belief will follow rather than precede action. But those observances are not as ritualized and well-defined in progressive legal advocacy as in more familiar religions. And in any event it is unclear why anyone who lacks constitutional faith would be motivated to initiate the bootstrapping process in the first place.
The second problem is that Balkin makes an idol, and sometimes a demon, of constitutionalism. Progressive constitutional theorists constantly face a large gap between the state of the law and their political ideals; the consequence of their high hopes and expectations is that they tend to oscillate between denouncing the Constitution as a “covenant with death” (in the words of the abolitionist William Lloyd Garrison) and eulogizing it as the embodied promise of political utopia here on earth. Both attitudes overestimate the importance of constitutions and constitutionalism.
A more balanced approach would regard constitutions along the lines sketched by social scientists such as Russell Hardin and Barry Weingast. Human welfare depends upon a modicum of social order, and the first and most minimal requirement of social order is some coordination of expectations. Unwritten constitutional norms or written constitutional rules first and foremost serve to establish order in this sense. If the society is lucky, those rules will also serve as focal points that help to coordinate popular control of the government and thereby enable the people to prevent serious abuses by incumbent rulers or officials. Beyond these essential functions, it is unclear how much constitutional institutions can accomplish, and anyone craving an object for their faith would do well to look elsewhere.
Balkin discusses the dangers of idolatry, but he does not adequately refute the suspicion that the whole enterprise of constitutional fidelity, construed as constitutional faith, reflects a misplaced set of priorities, an overestimation of the role of constitutionalism in political and social life, and a tendency to bow down before a set of idols created by, of all people, politicians and lawyers.
Adrian Vermeule is John H. Watson Professor of Law, Harvard Law School.