How Do We Redeem the Time?
Griffin, Stephen M., Texas Law Review
How Do We Redeem the Time? CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD. By Jack M. Balkin. Cambridge, Massachusetts: Harvard University Press, 2011. 304 pages. $35.00.
LIVING ORIGINALISM. By Jack M. Balkin. Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 2011. 480 pages. $35.00.
In Constitutional Redemption and Living Originalism, Jack Balkin, one of our most prominent and engaging constitutional scholars, goes well beyond the ambitions of conventional constitutional theory to offer an encompassing vision of American constitutionalism.1 He presents comprehensive theories of constitutional change and interpretation (or construction) informed by often profound reflections on the religious themes of constitutional faith and redemption through law. The breadth of Balkin's vision makes a review of his work unusually challenging and invites a similarly encompassing response.
The two books overlap to a degree, and Constitutional Redemption, a collection of essays that lacks some of the coherence of Living Originalism, will be of principal interest mostly to scholars. Living Originalism deserves a wide audience and may well prove influential as it is a forceful and compelling statement of an imaginative approach to two different areas of constitutional theory. Balkin presents independent, though related, theories of constitutional change and interpretation. Taken together, they are meant to critique and replace theories of originalism based on the expectations of the founding generation and accounts of the "living Constitution" that downplay the legally binding character of the original semantic meaning of the text.
It is worth noticing from the outset that both of these books are deeply influenced by three undeniably significant social movements: those for civil rights for African Americans, women's rights, and gay rights. In fact, Balkin's work may be the most outstanding example of a constitutional theory largely patterned on these movements, which self-consciously sought to change previous understandings of the Constitution, principally but not exclusively through litigation in federal courts.
Both theories embody Balkin's belief that the relationship that citizens have to the Constitution is central to constitutional theory. This also shows the influence of Balkin's frequent collaborator Sanford Levinson,2 and Balkin draws on Levinson's well-known distinction between "protestant" and "catholic" approaches to constitutional interpretation to develop a new variant that we might describe as "judeo-protestant."3 This means exploring what is involved in a chosen people making a self-conscious commitment to a text that is designed to endure over many generations. It also means determinedly staying with a citizen's perspective on the meaning of the Constitution rather than taking the authoritative interpretations announced by the Supreme Court as primary.4 Like his Yale colleague Akhil Amar, Balkin emphasizes understanding the document over the doctrine.5 As such, constitutional catholics-those interested in considering the authority of existing legal doctrine and the institutions that created it, as well as the contemporary constitutional order as a whole-may have a harder time accepting Balkin's position.6
While I have some criticisms of Balkin's vision and theories, I should say from the beginning that I applaud his consistent advocacy of the centrality of constitutional change.7 As he states: "One of the most important problems in constitutional theory is accounting for, explaining, and justifying legitimate constitutional change."8 I also agree with Balkin's historicist approach toward change,9 although we might differ at the end of the day on what such a perspective involves. In addition, I should highlight Balkin's very suggestive insight that the Constitution is a project-a plan for government that achieves legitimacy over time.10 This is a useful corrective to many different views that converge on seeing what happened in the eighteenth century as crucial to legitimacy as well as interpretation. As this Review reflects, however, I am especially skeptical of Balkin's treatment of the New Deal and his flat denial that the Supreme Court exercises significant power through the doctrine of judicial supremacy.11
Balkin presents two distinct theories. The first is a theory of constitutional change and democratic legitimacy.12 The second is a theory of interpretation that Balkin calls the method of "text and principle."13 Although these theories can be assessed independently, they are strongly related by their framework character. In fact, Balkin's name for his theory is "framework originalism."14 By "framework," Balkin means something closer to a sparse digital wireframe than an old-fashioned house blueprint. The Constitution provides a general frame for government rather than a detailed plan. It has been filled in over time through the largely political process of constitutional construction, helped along by social and political movements.15 Similarly, the method of text and principle provides a framework because we are legally obliged to follow the norms in the Constitution only at the level of generality commanded by its original semantic content, depending on whether the clause in question involves a rule, standard, or principle.16
Balkin's two theories suggest the two-part organization of this Review. I first take up Balkin's theory of constitutional change and then move to his theory of interpretation. Yet the scope of Balkin's vision enables this Review to have a consistent theme reflected in the title-how should we make sense of American constitutionalism's somewhat checkered past? How can we understand it and so redeem the time that we and the generations before us have spent under the Constitution?
I. Understanding Constitutional Change
We can begin with Balkin's description of the possible global narratives we could tell about American constitutionalism. In an essay reviewing Levinson's work, Balkin asks whether the history of the Constitution should be seen as a tragedy or a comedy.17 This is a question posed at a very high altitude. Most Americans would probably have a hard time seeing it as a tragedy. That would suggest their Constitution and government are failed projects, something most Americans would not accept. But Balkin makes more specific suggestions for constitutional stories that are easier to assess. The story could be the familiar one of a constant progression toward a better future. Balkin calls this the "Great Progressive Narrative" and, while recognizing its popular appeal, rejects it on the ground that it is too selfcongratulatory. 18 It should not be thought that the progressive narrative is the only available candidate. Another familiar story is that of a relative decline from the accomplishments of the early republic, one in which we nonetheless carry on amid the remnants of a great tradition.19 Which story suits American constitutionalism best?
Balkin answers that the story of the Constitution is best told as one of redemption.20 This narrative is better grasped once we understand that, for Balkin, the American constitutional tradition begins not with the Constitution, but with the promises implied in the self-evident truths of the Declaration of Independence-promises reiterated by such notable figures as Abraham Lincoln.21 Balkin contends that these eighteenth-century promises of freedom and equality have been gradually redeemed through American history, although the path has not always been a straight one, and the story is certainly not over.22
This is a very attractive and suggestive story, which I believe many Americans accept in broad outline. But we should notice that Balkin's stories have one thing in common-they are all narratives of continuity.23 In these narratives, the Constitution has never experienced a stumble or a fall. There are no discontinuities, disjunctions, or crises of governance.24 While there is no doubt this is a commonly held view about the Constitution, I believe it is in need of revision. Especially given episodes such as the Civil War and Reconstruction, I suggest we need the idea of discontinuity to make sense of American history as a whole, including constitutional history.25
Exploring the narrative of discontinuity is less familiar terrain for constitutional scholars. As a general matter, I would certainly not attribute this oversight to Balkin. He not only is well versed in the ins and outs of American constitutional history, but also avoids the traditional cause of the lack of interest in discontinuity-taking the Supreme Court and its doctrine as the centerpiece of attention. Constitutional scholars tend to hold to the position that whatever else has happened in American history, the Court has established a continuous line of doctrine in which, at least in principle, cases from the eighteenth century have precedential force.
Yet consistent with his framework approach, Balkin views the Constitution primarily as an arena, an American Colosseum for politics that never cracks or needs repair. The adamant material that makes this arena possible are the hard-wired rules in the Constitution on which there is no disagreement such as those specifying the requirements for holding office.26 Everything else is subject to constitutional construction-literally, a kind of continuous building and remodeling conducted principally by social and political movements and implemented as they capture control of the different branches of government.27 Although this may be inadvertent on Balkin's part, he strongly implies that the constitutional order is relatively plastic- putty in the hands of these movements and their constructions.28 This raises some significant questions given the prior scholarship that has been done on understanding constitutional change.
Because of the seminal work of Bruce Ackerman, everyone interested in constitutional change has become much more aware of the key role of transformative moments in the American constitutional experience, such as Reconstruction and the New Deal.29 In addition, along with Ackerman, many different political scientists, including Robert Dahl and Stephen Skowronek, have made legal scholars more comfortable with talking of constitutional change in terms of a succession of constitutional regimes or orders.30
How are such orders generated? How was the first constitutional order generated in the early republic? Balkin tends to gesture toward the importance of institutions and state building rather than offering us a contextual account that would help us understand how this process occurred. In particular, his theory does not explore the special status of the institutions created by the Constitution itself. The three branches of government- Congress, the President, and the Supreme Court-are "hard-wired" in the sense that no one disputes that the Constitution created them. Perhaps some of their enumerated powers are hard-wired as well, although Balkin's discussion of the Commerce Clause suggests that most of them are standards or principles rather than rules.31 But the crucial fact is that those institutions were created by the Constitution itself, which meant that the legitimacy that attached to the Constitution after ratification also attached to them. Among all the government departments and agencies created later, it gave them the authority to create law and the status of primus inter pares.32 This gave the three branches the capacity for state building-the ability to fill in some of the Constitution's blank spaces and create the first constitutional order. But it also meant they could act autonomously and so cause constitutional change on their own, so to speak, without waiting for instructions from social movements. This meant that it was possible for a constitutional order to emerge that had significant internal tensions. These tensions could be produced when the three branches fell into conflict with one another, when they were in conflict with the states, or when the emerging constitutional order came into conflict with the text of the Constitution itself.33
The commanding authority possessed by the original three branches of government certainly helps explain why Balkin's social movements engage in a continuous battle to control them. But concentrating on such movements does not necessarily help us understand the main line of constitutional change after the early republic. There is a plausible version of this story, reflected in Ackerman's theory, which Balkin avoids.34 The story is of a somewhat obdurate Constitution where coherent and consistent policy making was difficult because of the multiple veto points built into the original design. Once we are past the period of the early republic, the same was true of formal constitutional change through amendment. The multilevel process prescribed by Article V turned out to be difficult to navigate.35 Moreover, the federal government was in an uneasy relationship from the beginning with the separate state governments. The classic issue of federal versus state power, sharpened by the expansion of slavery into new territories acquired by the United States, blew up into a series of political crises. These crises culminated in the 1850s in a crisis of governance, resulting in the secession of the South and a massive Civil War.36
The crises of the Civil War and Reconstruction suggested a pattern for the future of constitutional change. Because of the multiple barriers to policy action in the Constitution, it has appeared to many commentators that the federal government is able to reform itself only in a crisis caused by external events.37 The Great Depression, for example, served as a catalyst for the changes that occurred in the New Deal. From Balkin's point of view, the New Deal was enabled by social and political movements, although he is not specific.38 However, there is little doubt that part of the story of the New Deal was the tremendous pressure for change caused by the signal failure of the constitutional order to handle the enormous human cost of the economic collapse that began in 1929.39 In other words, the Great Depression was just as much a failure of constitutional governance as it was an economic crisis. As a governance crisis, it was a failure that was traceable to the constitutional order laid down in the early republic.40 If this is right, it suggests the sticky nature of government institutions and the intransigence of the early constitutional arrangements. It also suggests that the elements of a constitutional order can be in considerable tension with one another. By and large, this sort of narrative of discontinuity is not Balkin's story.
For Balkin, the New Deal featured an appealing recommitment to the plain text of the Constitution and he quotes FDR to that effect.41 FDR probably had little choice, given the widespread veneration of the Constitution that had developed since the early republic.42 Yet it is worth noticing that Roosevelt and many other New Dealers seriously considered amending the Constitution throughout his first term,43 something that points away from the New Deal being, as Balkin contends, "a fairly standard example of how new constitutional constructions displace older ones."44 To be sure, one reason was practical politics rather than a principled belief in the desirability of amendment-Roosevelt and his advisers could not be certain of winning the favor of the Supreme Court for New Deal measures.45 Like any good politician, Roosevelt kept his options open. Among other points, this suggests the relevance of judicial supremacy to the formulation of policy in the Roosevelt administration. But judicial supremacy is in some tension with Balkin's theory of constitutional change. Seeing social and political movements as the prime movers, Balkin resists acknowledging the institutional role the Court has played in legalizing or enforcing the Constitution.46
It is likely that Balkin and I do not agree on how to assess the historic significance of the New Deal. I have argued previously, consistent with Ackerman's theory, that the New Deal went beyond any standard-issue doctrinal change that was or could have been authorized by the Court.47 Someone less interested in the theory of constitutional change might wonder whether a significant point is at issue between Ackerman and myself on one side and Balkin on the other. But how to understand the New Deal is important because it relates to the democratic legitimacy of constitutional change, something Balkin says his theory of constitutional construction helps us understand. Ackerman's account of how democratic legitimacy was obtained in periods of transformative change such as the New Deal is fairly well known. As described in his Holmes Lectures, it is a lengthy and complex process, beginning with a significant political movement such as a social movement.48 A movement is "a large body of citizens who are willing to invest enormous time and energy in the pursuit of a new constitutional agenda."49 Movement activists make proposals that are then taken up by parties and "plebiscitarian"50 presidents. Ackerman contends that the "key constitutional transformations"51 that result from this cycle go through "a distinctive institutional dynamic, consisting of five phases: signaling, proposing, triggering, ratifying, and finally consolidating the new principles supported by the American people."52
So understood, the life cycle of a movement for constitutional change is a majestic drama, extending over "a decade or two, that begins when a leading governmental institution inaugurates a sustained period of extraordinary popular debate, which gradually culminates in a series of key legal texts that express the will of a decisive majority of ordinary Americans at the polls."53 There are several interlocking parts to a constitutional transformation. Eager movement activists agitate for a government institution to sponsor their agenda.54 The institution assumes a leadership role and drives the agenda to fulfillment through elections that both confirm the original signal and ratify legal changes. Throughout, a variety of factors are in play-activist proposals, official decisions, and electoral strategies all focused on whether a set of constitutional proposals will be adopted. When it all comes together after the completion of the five-stage sequence, we obtain statutes and precedents that are "functionally equivalent" to Article V amendments.55
While many scholars, including Balkin and myself, have resisted Ackerman's conclusion that the New Deal reforms were the functional equivalent of constitutional amendments,56 what ought to draw our attention is why Ackerman believes such an elaborate process is necessary to confer democratic legitimacy. Balkin drops the complexity of Ackerman's theory, simply arguing that social and political movements legitimate all constitutional constructions, including the New Deal.57 But Ackerman's theory has the virtue of acknowledging the status of the Constitution as a fundamental law.58 This implies that basic structural changes cannot be accomplished through ordinary politics without a loss of legitimacy. While such changes might be made through ordinary politics as Balkin holds, the logic of the constitutional order suggests there would be a significant price to be paid.
The New Deal is exemplary in this regard. It involved altering the basic assumptions of government, something that meant a change to what might be called American constitutional ideology.59 This is why Ackerman holds that not any sort of political movement was sufficient to achieve democratic legitimacy.60 However, like Balkin, Ackerman believes the New Deal did attain this legitimacy.61 My own take is different and involves seeing the constitutional order that emerged from the New Deal as somewhat problematic. Because the New Deal involved several amendment-level constitutional changes, it was resisted from the outset and through the decades since by the right wing of American politics62-something that cuts against Ackerman's and Balkin's claims that social and political movements won a decisive victory that permanently conferred democratic legitimacy. It is too speculative to conclude that resistance to the New Deal in later decades would have been reduced if the changes proposed by the Roosevelt administration had received the imprimatur of constitutional amendments. Like the Reconstruction amendments, however, they would have provided a more solid foundation for a possible resolution of the tensions that still plague the New Deal order.
My disagreement with Balkin can probably be traced to our differing interpretations of historicism. Like Ackerman and a number of other scholars including myself,63 Balkin advocates a historicist approach to understanding constitutional change.64 Balkin argues that attention should be paid to the power of contingency in history, how the Supreme Court and other key constitutional actors could have chosen differently.65 Changes such as the New Deal, which can appear radical and transformative, certainly were prefigured as Americans in earlier times argued back and forth over the meaning of the Constitution. While I would not disagree, I see no alternative to evaluating change in the present against a baseline established by the sort of rich contextual analysis historians are in the business of providing. Ultimately, Balkin draws a line at allowing history to strongly influence how we make sense of the present through legal reasoning.66 I believe this involves unwisely limiting our understanding of how the past is relevant.
Balkin's narrative always springs to life when he invokes the achievements of the contemporary movements for civil rights, women's rights, and gay rights. He leaves the impression that these movements (and the mobilizations against them) have been responsible for most constitutional change post-1937. He may well be right, although they have little relevance to what has happened with respect to the separation of powers, including presidential war powers, since 1945.67 I certainly do not have a more attractive narrative to offer than Balkin's invocation of how these movements have redeemed our politics. I simply regard a narrative of the discontinuities in our constitutional order as more realistic and perhaps more attuned to our current problems of governance.68
II. The Wages of Constitutional Protestantism
Balkin's theory of interpretation rests on a thoroughgoing constitutional protestantism. In an especially clear example of his belief and commitment, he states:
I became an originalist because I believe in a protestant constitutionalism, in which the text provides a common framework for constitutional construction that offers the possibility of constitutional redemption. People often associate originalism with stability, fixity, and resistance to reform. But originalism is much more than a theory of stasis. It is also a theory of change, often quite radical in nature. It is not a device for preserving the status quo. It is a weapon of dissent. It does not pledge faith in the dead hand of the past. It pledges faith in the future redemption of the Constitution. These statements may sound paradoxical at first; but once you grasp their meaning, you will also understand why I became an originalist.69
I agree with Balkin that American history shows that citizens regard the Constitution as an available text, which they can always invoke to critique the status quo.70 I also agree strongly with his contention that theories of interpretation are more like languages in which we communicate our constitutional arguments rather than algorithms that spit out determinate results.71 But as someone who sees the relevance of constitutional "catholicism," that is, the undeniable, compelling authority of government institutions, advocating a theory that takes "interpretation by citizens as the standard case"72 gives me pause. After all, what citizen or group of citizens does Balkin have in mind? To his credit, Balkin responds to this concern by positing that authority in our constitutional order is earned over time in a dialectic between the courts and those outside.73
Here my experience with the "catholicism" of our contemporary constitutional order is simply at odds with Balkin's. From my point of view, supported by some recent scholarship, we have been living in an era where the doctrine of judicial supremacy is not only acknowledged and respected, but the sphere of the Supreme Court's power has been constantly expanding, possibly to its detriment.74 Again, Balkin is theoretically quite nimble in recognizing that the Rehnquist and Roberts Courts have been more aggressive in promoting judicial supremacy and that controversial cases like Bush v. Gore75 show the Court exercising in rather decisive fashion its authority over the other branches of government.76 He also recognizes that the judiciary has more autonomy in an era dominated by polarized politics and divided government.77
While Balkin's returns of serve are interesting, the real issue would appear to be the usefulness of a theory of interpretation that lacks significant contact with the doctrine promulgated by the Supreme Court.78 While bypassing the enormous accumulated mass of judicial doctrine certainly has its attractions, one wonders whether such efforts in effect assume that we can push a constitutional reset button and do it better the second time around.79 Balkin's always fascinating, incisive, and often persuasive interpretations of the Commerce Clause and the Fourteenth Amendment sometimes have this quality.80
Balkin's treatment of the origins of the Constitution in the eighteenth century raises related issues. Balkin commits us to respecting the original semantic content of the Constitution without saying very much about the context in which the Constitution was adopted.81 This is of critical importance with respect to the longstanding disputes over the enumerated powers of Congress and federalism. In part, the stakes are that Balkin's theory is unlikely to be regarded as originalist by those who carry the banner high. But it should also cause us to pose some questions about the method of text and principle and the historical coherence of framework originalism.
There comes a point early in Balkin's presentation of his theory where conventional originalists are likely to part ways. Balkin argues that "the best general argument for constitutionalism" is not that constitutions limit government but rather that they "create political institutions and . . . set up the basic elements of future political decisionmaking."82 There is an old debate concerning the adoption of the Constitution that tracks the general point Balkin is making. Every so often, commentators like Garry Wills will properly remind us that the Constitution was passed to empower the national government-in fact, to make it much more powerful than the government that had existed under the Articles of Confederation.83 It is also true, however, that the issue of "limited government" was very much in the air during the ratification of the Constitution.84 To be sure, this issue has to be stated carefully to avoid anachronism. What worried people was not so much any particular new power given to the government, especially Congress, but rather the overall balance between the federal government and the states.85 Proponents of the Constitution had to reassure their audience that the Constitution contained guarantees sufficient so that the national government would not overwhelm state sovereignty.86
According to Balkin's method of text and principle, these worries over the limits on national power, often expressed as a fear of a "consolidated" government, are examples of disputes over constitutional principles, not rules.87 While such principles of course have a semantic content, certainly they could be construed in many different ways and the history of the early republic reflects warring constitutional constructions over the proper balance of state and federal power.88 Yet the crucial point Balkin slights is that this concern about the federal-state balance was just as much a fundamental background norm of the original Constitution as the desire to have a more effective and empowered government. It is worth noticing that this is the same issue I mentioned in Part I that was the leading cause of the instability of the original constitutional order before the Civil War. We could say accurately, compatible with the sort of discontinuous theory of constitutional change I advocate, that a tension was thus built into the constitutional order from the beginning. But the broader point is that Balkin is making things too easy for himself by bypassing a crucial part of the eighteenth-century context in which the Constitution was ratified.
To be sure, Balkin's justification for constitutionalism is offered as a general and theoretical argument, although he clearly thinks it is directly relevant to the interpretation and construction of the U.S. Constitution. In criticizing David Strauss's approach to the "living Constitution,"89 for example, Balkin contends that a theory of the Constitution has to address the particular fundamental "law Americans live under."90 Conventional originalists, who enjoy immersion in the eighteenth century, will remind Balkin that some notion of limited government, expressed in terms of commitments to federalism and individual rights, was an ineluctable part of the original constitutional order.91 The problem is that this fundamental norm is difficult to fit within a theory that characterizes the Constitution as a spare framework for government that could be filled out through later constructions. In reality, the original Constitution was both (1) a relatively spare framework for government and (2) a guarantor of fundamental norms. Acknowledging these norms and how they served the concept of limited government, however, would recreate the complex historical and interpretive problems Balkin is trying to avoid through framework originalism and the method of text and principle. His posited détente between originalism and living constitutionalism would collapse because it is these historical tensions that helped create the divide between these schools of thought in the first place.
What is going wrong here? In work I have done on war powers, I have observed that theories that search for original meaning can wind up advocating positions in the present that no one in the founding era of the 1780s agreed with or could even conceive.92 This can happen because accounts of semantic meaning tend to devalue historical context. They construct possible meanings from dictionaries and public debates, without a historically defensible way to choose among them.93 What we should strive for is a full-bore, living-color, three-dimensional version of the circumstances in which the Constitution was written and ratified. Imagine, for example, a member of the Virginia ratifying convention going over the semantic meaning of each phrase in the Constitution with a knowledgeable interlocutor such as James Madison. After Madison satisfies the member that each clause has a reasonable meaning, the member remarks: "Mr. Madison, after all is said and done, can you assure me that the Constitution respects the sovereignty of the states?" We can well imagine Madison replying, "Of course!"94 Given the times, that is what Madison and other Federalists had to say. While Balkin's theory certainly does not bar us from using Madison's remark as evidence, it does not place this ratification reality at the center of our understanding of what the Constitution originally meant.
The narrow point I have been making is that conventional (and conservative) originalists are unlikely to accept a method of interpretation that bypasses the concept of limited government. The broader point is that the method of text and principle tends to drain the Constitution of the tensions that occupied the Supreme Court and other authoritative interpreters throughout the early republic and beyond. This is somewhat ironic, given that Balkin is not only well aware of but positively eloquent on the moral compromises that were necessary to get the Constitution of 1787 offthe ground. His view is that the Constitution has been gradually redeemed over time through both formal and informal changes sponsored by social and political movements, although such redemption is always only partial.95 My own view is that the Constitution's problems from the beginning were not only moral but structural. These problems have become more acute over time as the national government has become more activist. Balkin places such emphasis on the Constitution as a spare framework and invests so much in constitutional constructions to fill it out that the interesting tensions that have driven constitutional change over the decades get smoothed out. It does not help that Balkin pours nearly all of the substance of ordinary politics into his constitutional constructions.96 As I have already observed, the Constitution as a fundamental law gets lost when we do this.
There is one further troublesome point concerning Balkin's constitutional protestantism. As noted earlier, Balkin defends "living originalism" as a perspective that citizens can use to change the status quo. For him, originalism is a doctrine for dissenters and has within it the potential for radical social and political change.97 This fits with Balkin's emphasis on the lessons conveyed by the social movements for civil rights, women's rights, and gay rights.98 These movements called on all Americans to redeem the promise of the Constitution. But Balkin goes far beyond regarding social movements as the primary legitimate agents of constitutional change. Balkin makes it clear that individual citizens can and have caused constitutional change by participating in political movements as well as social movements.99 By political movement, Balkin appears to mean any sort of political group, including political parties and interest groups.100 All of these groups count equally, so to speak, as groups that are allowed, within the structure created by a framework Constitution, to propose and implement constitutional constructions.101 In so doing, these groups cause constitutional change and create the real terrain of the living Constitution.
The trouble comes when we add judicial review to this mix. In placing all social and political movements on an equal footing, Balkin is somewhat mysteriously passing over the sorts of issues that cluster around Carolene Products footnote four.102 The general idea is that some groups have been systematically disadvantaged, either because they have been largely excluded from an effective voice in an otherwise democratic process or are, in the famous language of the footnote, "discrete and insular minorities"103 that are the object of prejudice. Judicial review that serves to redress such deficiencies in the representative process promotes democratic legitimacy, something that is important to all theories of constitutional change.104 But Balkin does not adopt this sort of condition with respect to the groups that drive constitutional change in his theory.
This results in some odd juxtapositions. Balkin discusses the movement by African Americans for civil rights in the same breath as the mobilization for gun rights by the National Rifle Association (NRA).105 Balkin obviously does not believe that white gun owners were ever in the same position with respect to the democratic process that African Americans were under segregation. If we assume that groups like the NRA can participate effectively in the democratic process, why would they need the special solicitude of the judiciary?
As I have foreshadowed throughout this Review, Balkin and I disagree about the relevance of judicial supremacy. He believes that the Court moves back and forth over the long run with the shifting tides of politics, and is fairly sanguine that a decree by the Court is more like a large sandbar than a prison wall.106 By contrast, I believe that when the Court rules, it can result in a barrier higher than any of the political branches can raise. It thus requires special justification, especially when the judiciary interprets a constitutional clause over which there is significant political disagreement.107 Nevertheless, even if we set aside this particular line of argument, we would still be leftwith the question of whether judicial review is necessary. Keep in mind the sort of judicial review under discussion is not to vindicate the rights of some poor victim of arbitrary state action, but to help wellorganized groups who are under no systematic disadvantage in the political process to accomplish their goals.
Two further distinctions will sharpen this point. Judicial review can provide a way for disadvantaged minorities within states to link up with national majorities. There is a good argument that this is what was going on during the period of extensive doctrinal change experienced under the Warren and Burger Courts.108 Even if such minorities are not systematically disadvantaged in a state's political process, it is possible to justify judicial review in such a situation as a part of a national political dialogue, given the democratic links the judiciary has to the elected branches.109 But if the Court is reviewing legislation enacted by Congress and approved by the President, matters are different. Here the law has survived the multiple veto points built into the Constitution and has a strong claim to being the product of a national majority-indeed, a supermajority. Now imagine in addition that the purpose of the law is to advance constitutional rights-indeed, to vindicate the Carolene Products values of bringing down barriers that have excluded citizens from the political process and redressing problems of invidious discrimination. Such laws, including many different civil rights laws and the Americans with Disabilities Act, have become much more common in the decades since the Warren Court. Indeed, I have argued that they have helped create a "democracy of rights."110
The Rehnquist Court used judicial review against statutory rights created by Congress; rights that were created to vindicate constitutional values.111 Judicial invalidation of such rights is questionable on multiple grounds. There is the old argument that in acting against Congress, the Court is usually acting against the wishes of a determined national majority.112 In addition, however, if we value redressing the defects of the democratic process, then the Court was acting against the values of Carolene Products, rather than trying to advance them.113
In saying all this, I am not trying to create an airtight argument. I am raising an issue with respect to the relationship of these developments to Balkin's theory. Despite his protestantism and celebration of how social movements can use ordinary politics to cause constitutional change outside the courts, Balkin nonetheless accepts the current practice of judicial review. While he disclaims a full-scale defense of judicial review in Living Originalism,114 he makes a number of arguments toward the end of the book designed to show that although judicial review could be reformed, it should be preserved.115 Balkin sees the Court as a site of contestation by social and political movements.116 In many ways, Balkin's theory assumes the reality of a thoroughly politicized federal judiciary. A political movement will mobilize to achieve its goals through judicial review. Other groups will countermobilize in opposition. We might sense nothing wrong with this pluralistic picture until we recall that some groups, like African Americans, needed judicial review because they could not otherwise obtain a foothold in the ordinary democratic process. At that point, while we might concede that Balkin's theory accurately describes how political groups struggle to control the Court, we would have to recognize that, at least from a historical point of view, not all groups have had the same ability to succeed in the democratic process.
My best guess is that ultimately Balkin is not very troubled by this because he thinks that victories and defeats in the Court are always temporary and provisional. I wish I could agree. If Balkin is wrong about the relative insignificance of judicial supremacy, then his commitment to originalism as a theory capable of disturbing the status quo is inconsistent with his staunch regard for judicial review. As pro-life citizens have discovered since Roe v. Wade,117 it can be much harder to achieve your goals with the Supreme Court in the way. As African Americans have discovered since Earl Warren retired, the Court can stymie progress on civil rights. If the Court holds the coveted high ground amid the contestation of various political groups, then movements that promote democracy will be opposed by groups that seek to curtail it.118 At some point, Balkin and others who support judicial review and also support the Carolene Products values of inclusion, antisubordination, and democracy will have to ask whether perpetuating the Court's power to clog the channels of political change and perpetuate inequality and subordination is the right course of action. In a democracy of rights, the Court's current power is an anachronism.119
I have over 100 books related to American constitutional theory on my bookshelf, and there are only a few I would compel my students to buy. Balkin's Living Originalism is one of them. Both of these books are immensely sophisticated works. They have been deeply thought out over many years and show the most attentive consideration to many different argumentative pathways. It is therefore entirely possible that some of my objections are not well founded. Among other points not mentioned in this Review, Living Originalism is the most outstanding discussion of living constitutionalism available, one which all subsequent discussions of the topic will be required to consider. Balkin's achievement in constitutional theory is akin to that of John Rawls in A Theory of Justice120 in that he creates and invites the reader to participate in a common project for the betterment of our country. I hope this Review will be considered part of that project.
1. JACK M. BALKIN, CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD (2011) [hereinafter BALKIN, CONSTITUTIONAL REDEMPTION]; JACK M. BALKIN, LIVING ORIGINALISM (2011) [hereinafter BALKIN, LIVING ORIGINALISM].
2. See BALKIN, CONSTITUTIONAL REDEMPTION, supra note 1, at 94-101 (reviewing and critically evaluating Levinson's distinction between constitutional catholicism and constitutional protestantism); see, e.g., Sanford Levinson & Jack M. Balkin, Constitutional Crises, 157 U. PA. L. REV. 707 (2009) (arguing that a "constitutional crisis" refers to a turning point in the health and history of a constitutional order, not a mere constitutional disagreement, and identifying three types of constitutional crises); J.M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963 (1998) (discussing canons in the study of law and arguing that the current study of constitutional law is too focused on Supreme Court jurisprudence); Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 VA. L. REV. 1045, 1052-53 (2001) (arguing that the Supreme Court "has begun a systematic reappraisal of doctrines concerning federalism, racial equality, and civil rights that, if fully successful, will redraw the constitutional map as we have known it"); Sanford Levinson & Jack M. Balkin, Constitutional Dictatorship: Its Dangers and Its Design, 94 MINN. L. REV. 1789 (2010) (discussing the hazards of constitutional dictatorship and its institutional role in post-9/11 America); Sanford Levinson & J.M. Balkin, Law, Music, and Other Performing Arts, 139 U. PA. L. REV. 1597 (1991) (reviewing AUTHENTICITY AND EARLY MUSIC (Nicholas Kenyon ed., 1988) and analogizing the practice of interpreting music to that of interpreting law); see also SANFORD V. LEVINSON, CONSTITUTIONAL FAITH 27-36 (1988) (analogizing conflicting concepts of constitutionalism to the varied concepts of Christianity).
3. This distinction was originally advanced in SANFORD V. LEVINSON, CONSTITUTIONAL FAITH 27-36 (1988).
4. BALKIN, LIVING ORIGINALISM, supra note 1, at 17.
5. See generally Akhil Reed Amar, Foreword, The Document and the Doctrine, 114 HARV. L. REV. 26 (2000) (prioritizing textual analysis over doctrine).
6. For Balkin's comments on constitutional "catholicism," see BALKIN, CONSTITUTIONAL REDEMPTION, supra note 1, at 94-100.
7. Id. at 226.
9. Id. at 211-25.
10. Id. at 57; BALKIN, LIVING ORIGINALISM, supra note 1, at 74-77.
11. BALKIN, LIVING ORIGINALISM, supra note 1, at 68.
12. Id. at 130.
13. Id. at 6.
14. Id. at 21, 33.
15. Id. at 21-23, 31-32. An important source for the theory of constitutional construction is KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING (1999).
16. BALKIN, LIVING ORIGINALISM, supra note 1, at 6, 12-13.
17. BALKIN, CONSTITUTIONAL REDEMPTION, supra note 1, at 80-82.
18. Id. at 3-5.
19. Id. at 5.
20. Id. at 5-6.
21. Id. at 18-21.
22. Id. at 6.
23. For this concept, see Stephen M. Griffin, Constitutional Theory Transformed, 108 YALE L.J. 2115, 2123-24 (1999) [hereinafter Griffin, Constitutional Theory Transformed].
24. On the idea of disjunctions in American political development, see STEPHEN SKOWRONEK, THE POLITICS PRESIDENTS MAKE: LEADERSHIP FROM JOHN ADAMS TO BILL CLINTON (6th prtg. 2003).
25. For this thought, see STEPHEN M. GRIFFIN, AMERICAN CONSTITUTIONALISM: FROM THEORY TO POLITICS 72-77 (1996) [hereinafter GRIFFIN, AMERICAN CONSTITUTIONALISM].
26. See BALKIN, LIVING ORIGINALISM, supra note 1, at 24 ("Constitutional drafters use rules because they want to limit discretion; they use standards or principles because they want to channel politics but delegate the details to future generations. They leave things silent for a number of reasons . . . ."); id. at 43 (arguing that the constitutional drafters' choice of "rules, standards, and principles is a choice in the constitutional plan about what to settle at the time of adoption and what to delegate to future construction" and that expectations of originalists who insist that we may not make our own judgments have thus confused their own choices with the plan they set out to protect).
27. Id. at 114-15; see generally Jack M. Balkin & Sanford Levinson, The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State, 75 FORDHAM L. REV. 489 (2006) (discussing the use of judicial appointments to change the course of constitutional doctrine); Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 VA. L. REV. 1045 (2001) (describing George W. Bush's anointment to the presidency by conservative justices).
28. BALKIN, LIVING ORIGINALISM, supra note 1, at 113-14.
29. See generally 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998) (discussing the impact of Reconstruction and the New Deal on American law).
30. See id. at 17-26 (identifying patterns of constitutional change in the transformative eras of the Founding, Reconstruction, and the New Deal); see generally SKOWRONEK, supra note 24 (positing that the presidency has been the most persistent and disruptive source of change in American politics and examining patterns in the efforts and effects of presidential leadership across different periods). For a useful review of this literature, see generally Thomas M. Keck, Party Politics or Judicial Independence? The Regime Politics Literature Hits the Law Schools, 32 LAW & SOC. INQUIRY 511 (2007).
31. BALKIN, LIVING ORIGINALISM, supra note 1, at ch. 9.
32. Primus inter pares means "first among equals." 12 OXFORD ENGLISH DICTIONARY 490 (2d ed. 1989).
33. I make this argument for the case of war powers in STEPHEN M. GRIFFIN, LONG WARS AND THE CONSTITUTION: PRESIDENTS AND THE CONSTITUTIONAL ORDER FROM TRUMAN TO OBAMA, ch. 1 (forthcoming 2013).
34. For his criticisms of Ackerman's theory, see BALKIN, LIVING ORIGINALISM, supra note 1, at 309-12.
35. Balkin agrees with this point. BALKIN, CONSTITUTIONAL REDEMPTION, supra note 1, at 63.
36. GRIFFIN, AMERICAN CONSTITUTIONALISM, supra note 25, at 74-76.
37. See Bruce Ackerman, 2006 Oliver Wendell Holmes Lectures: The Living Constitution, 120 HARV. L. REV. 1737, 1757-58 (2007) (discussing the cycles of popular sovereignty that have given rise to constitutional change).
38. BALKIN, LIVING ORIGINALISM, supra note 1, at 86-87.
39. See GRIFFIN, AMERICAN CONSTITUTIONALISM, supra note 25, at 72, 86, 194-96 (discussing the relationship between the reverence for the Constitution, the Great Depression, and ongoing problems of legitimacy facing the New Deal order).
40. Griffin, Constitutional Theory Transformed, supra note 23, at 2132-36.
41. See BALKIN, CONSTITUTIONAL REDEMPTION, supra note 1, at 240-41 (noting President Roosevelt's appeal to the language used by the Framers, who Roosevelt believed "used broad and general language capable of meeting evolution and change when they referred to commerce between the States, the taxing power and the general welfare").
42. GRIFFIN, AMERICAN CONSTITUTIONALISM, supra note 25, at 39-41.
43. Id. at 37-38; DAVID E. KYVIG, EXPLICIT AND AUTHENTIC ACTS: AMENDING THE U.S. CONSTITUTION, 1776-1995, at 289-90 (1996); William E. Forbath, The Politics of Constitutional Design: Obduracy and Amendability-A Comment on Ferejohn and Sager, 81 TEXAS L. REV. 1965, 1976-80 (2003).
44. BALKIN, LIVING ORIGINALISM, supra note 1, at 139.
45. See, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (holding the National Industrial Recovery Act unconstitutional).
46. For Balkin's rejection of judicial supremacy, see BALKIN, LIVING ORIGINALISM, supra note 1, at 68. For the idea of legalization, see GRIFFIN, AMERICAN CONSTITUTIONALISM, supra note 25, at 17-18.
47. Griffin, Constitutional Theory Transformed, supra note 23, at 2129-38.
48. Ackerman, supra note 37, at 1759-60.
50. Id. at 1760.
51. Id. at 1762.
53. Id. at 1763.
54. Id. at 1762.
55. Id. at 1761.
56. BALKIN, LIVING ORIGINALISM, supra note 1, at 139; Griffin, Constitutional Theory Transformed, supra note 23, at 2147.
57. See BALKIN, LIVING ORIGINALISM, supra note 1, at 139 (disagreeing with Ackerman and suggesting that shifts in constitutional understanding come from new constitutional constructions proffered by the political branches "who [lead] and respond to new political mobilizations for change").
58. See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 6-7 (1991) (comparing the higher lawmaking powers of the people with the subordinate political powers of government).
59. Griffin, Constitutional Theory Transformed, supra note 23, at 2137-42. Also see the interesting and valuable account in BARRY FRIEDMAN, THE WILL OF THE PEOPLE 205-12 (2009).
60. See ACKERMAN, supra note 29, at 380-81 (discussing the necessary steps to achieve constitutional legitimacy for the New Deal).
62. See GEOFFREY KABASERVICE, RULE AND RUIN: THE DOWNFALL OF MODERATION AND THE DESTRUCTION OF THE REPUBLICAN PARTY 25 (2012) (discussing conservative opposition to the New Deal); KATE ZERNIKE, BOILING MAD: INSIDE TEA PARTY AMERICA 68-77 (2010).
63. Griffin, Constitutional Theory Transformed, supra note 23, at 2148-62.
64. BALKIN, CONSTITUTIONAL REDEMPTION, supra note 1, at 12, 15-16, 211-25.
65. Id. at 211-25.
66. BALKIN, LIVING ORIGINALISM, supra note 1, at 44-45.
67. For a relevant discussion of war powers and constitutional change, see GRIFFIN, supra note 33.
68. Here I throw my lot in with Levinson. See SANFORD LEVINSON, FRAMED: AMERICA'S FIFTY-ONE CONSTITUTIONS AND THE CRISIS OF GOVERNANCE (2012); see also Robert F. Williams, Unsettling the Settled: Challenging the Great and Not-So-Great Compromises in the Constitution, 91 TEXAS L. REV. (forthcoming 2013) (reviewing LEVINSON, supra).
69. BALKIN, CONSTITUTIONAL REDEMPTION, supra note 1, at 232.
70. Balkin makes this point in id. at 235-38. I offer some examples in my work on war powers. GRIFFIN, supra note 33, at ch. 3.
71. BALKIN, LIVING ORIGINALISM, supra note 1, at 133-37.
72. Id. at 17.
73. BALKIN, CONSTITUTIONAL REDEMPTION, supra note 1, at 99.
74. See, e.g., THOMAS M. KECK, THE MOST ACTIVIST SUPREME COURT IN HISTORY: THE ROAD TO MODERN JUDICIAL CONSERVATISM 285 (2004) (noting that "[t]he current Court's continued willingness to exercise its power on behalf of liberal as well as conservative ends has tended to reinforce support for judicial power among political elites"); Richard L. Hasen, End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 S. CAL. L. REV. (forthcoming 2013) (noting a decline in the Supreme Court's popularity).
75. 531 U.S. 98 (2000).
76. BALKIN, CONSTITUTIONAL REDEMPTION, supra note 1, at 88, 95-96.
77. BALKIN, LIVING ORIGINALISM, supra note 1, at 291.
78. Id. at 257.
79. I have made this argument with respect to Randy Barnett's purist libertarian theory. Stephen M. Griffin, Barnett and the Constitution We Have Lost, 42 SAN DIEGO L. REV. 283, 285 (2005) (noting that Barnett's theory "is afflicted by a certain historical weightlessness"); see also RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY (2004) (arguing that since the enactment of the Constitution, the Court's political agenda has caused the Constitution to lose its original meaning).
80. BALKIN, LIVING ORIGINALISM, supra note 1, chs. 9-11.
81. See id. at 6 ("The method and text principle argues that we should pay careful attention to the reasons why constitutional designers choose particular kinds of language.").
82. Id. at 24.
83. GARRY WILLS, A NECESSARY EVIL: A HISTORY OF AMERICAN DISTRUST OF GOVERNMENT (2004).
84. See HERBERT J. STORING, WHAT THE ANTI-FEDERALISTS WERE FOR 53, 67 (1981) (arguing that "[t]he Federalists and Anti-Federalists agreed that government is properly directed to the pursuit of limited ends" and that "the debate over the bill of rights was an extension of the general debate over the nature of limited government").
85. See, e.g., PAULINE MAIER, RATIFICATION: THE PEOPLE DEBATE THE CONSTITUTION, 1787-1788 (2011) (discussing the history and ratification of the Constitution).
86. Id. at 75-78, 81-83, 109, 263, 269-70, 290, 363, 412-15, 432, 462-63, 466-67.
87. BALKIN, CONSTITUTIONAL REDEMPTION, supra note 1, at 229-32.
88. BALKIN, LIVING ORIGINALISM, supra note 1, at 27-28.
89. DAVID A. STRAUSS, THE LIVING CONSTITUTION (2010).
90. BALKIN, LIVING ORIGINALISM, supra note 1, at 54.
91. Lino Graglia, How the Constitution Disappeared, in ORIGINAL MEANING JURISPRUDENCE: A SOURCEBOOK 118, 123 ("[The Constitution's] greatness and durability surely derive in large part from the fact that the Framers' aims were much more specific and limited.").
92. I have made this criticism of John Yoo's account of the meaning of the "declare war" clause. GRIFFIN, supra note 33, at ch. 1.
93. David A. Strauss, Can Originalism Be Saved?, 92 B.U. L. REV. 1161, 1166 (2012).
94. See generally THE FEDERALIST NO. 45 (James Madison) (arguing that the Constitution preserves sovereignty of states and the power granted to the federal government is limited).
95. BALKIN, CONSTITUTIONAL REDEMPTION, supra note 1, at 5-8.
96. See his discussion in BALKIN, LIVING ORIGINALISM, supra note 1, at 297-300.
97. Id. at 232.
98. Id. at 226-27.
99. BALKIN, LIVING ORIGINALISM, supra note 1, at 17.
100. Id. at 82, 294.
101. Id. at 294.
102. United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 n.4 (1938).
104. The classic source for this argument is JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980).
105. BALKIN, LIVING ORIGINALISM, supra note 1, at 323-24.
106. Id. at 287-88.
107. See Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346, 1366-67 (2006) (explaining that judicial review makes the judiciary the final arbiter of issues that are the "focal points of moral and political disagreement in many societies").
108. FRIEDMAN, supra note 59, at 258-61 (discussing how dysfunctions in the democratic process have required judicial review); LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS 214-15 (2000) (stating that the Warren Court implemented a theory of constitutional adjudication where it would protect minority groups that could not protect themselves by joining electoral coalitions).
109. See Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577, 653 (1993) (describing constitutional interpretation as "an elaborate discussion between judges and the body politic").
110. For the argument made in this paragraph, see Stephen M. Griffin, The Age of Marbury: Judicial Review in a Democracy of Rights, in ARGUING MARBURY V. MADISON 104, 138-39 (Mark Tushnet ed., 2005) [hereinafter Griffin, The Age of Marbury].
111. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 511 (1997) (finding the Religious Freedom Restoration Act of 1993, intended to protect the beliefs of religious minorities from governmental encroachment, an unconstitutional exercise of federal authority); United States v. Morrison, 529 U.S. 598, 601 (2000) (striking down a federal civil remedy for victims of gendermotivated violence).
112. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 21 (1962) (characterizing the judiciary as a "counter-majoritarian check on the legislature" with a tendency, over time, to seriously weaken the democratic process).
113. See Griffin, The Age of Marbury, supra note 110, at 139-40 (explaining that the former rationale for vigorous review of legislative classification now runs in the opposite direction).
114. BALKIN, LIVING ORIGINALISM, supra note 1, at 68.
115. Id. at 295-96.
116. Id. at 293-96.
117. 410 U.S. 113 (1973).
118. This is one way to understand the controversy surrounding Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). For a relevant discussion critical of Balkin's argument, see Richard H. Pildes, Is the Supreme Court a "Majoritarian" Institution?, 2010 SUP. CT. REV. 103.
119. See Griffin, The Age of Marbury, supra note 110, at 142 (noting that "the task of justifying judicial review has presented different challenges at different periods in American history," and that "Marshall's justifications for judicial review would make no sense in our own time"). As noted, Balkin recognizes this to an extent by advocating the reform that presidents be given Supreme Court appointments every two years. BALKIN, LIVING ORIGINALISM, supra note 1, at 296.
120. JOHN RAWLS, A THEORY OF JUSTICE (rev. ed. 1999).
Reviewed by Stephen M. Griffin*
* Rutledge C. Clement, Jr. Professor in Constitutional Law, Tulane Law School. I thank Jack Balkin for commenting on a late draftof this Review.…
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Publication information: Article title: How Do We Redeem the Time?. Contributors: Griffin, Stephen M. - Author. Journal title: Texas Law Review. Volume: 91. Issue: 1 Publication date: November 1, 2012. Page number: 101+. © University of Texas, Austin, School of Law Publications, Inc. Dec 2008. Provided by ProQuest LLC. All Rights Reserved.
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