Academic journal article Boston University Law Review

Constitutional and Religious Redemption: Assessing Jack Balkin's Call for a "Constitutional Project"

Academic journal article Boston University Law Review

Constitutional and Religious Redemption: Assessing Jack Balkin's Call for a "Constitutional Project"

Article excerpt

INTRODUCTION

I begin with a disclaimer: I am not a constitutional theorist. I haven't even played one on TV. But according to Professor Jack Balkin's ambitious new book Living Originalism, that should not stop me from engaging in what he calls "the constitutional project," in which I, along with others, attempt to interpret - indeed, to redeem - the U.S. constitution.1 Living Originalism pairs two intriguing ideas: a "constitutional project" and "constitutional redemption." I am excited by the notion of a project, and of a constitutional project in particular. In my work for at least a decade I have used the idea of a "formative project" to refer to the task of preparing persons for democratic and personal self-government.2 I have argued that our constitutional system permits, authorizes, and even calls for such a project, and I have explored the division of labor among families, civil-society institutions, and government for carrying out such a project.3

To understand what Balkin means by a constitutional project the reader must understand his concept of redemption, a term he employs in his companion book Constitutional Redemption.4 Redemption is a term heavy with religious meaning. This intrigues me as a student of religion for many years. I also grew up attending Redeemer Lutheran Church in Toledo, Ohio, and was duly confirmed after two years of studying the teachings of Martin Luther. Martin Luther famously argued for "the priesthood of all believers," contending that each person (not only the Pope) could and should read and interpret the Bible without intermediaries.5 Secular forms of these notions shape what Balkin (following Sandy Levinson) refers to as "constitutional protestantism."6

In this Article, I will ask how these two ideas - of a constitutional project and of redemption - fit into Balkin's "living originalism." What is a "constitutional project"? How do people engage in it? How does redemption feature in this project? How well does the religiously-laden term "redemption" translate into the constitutional project? Further, this religiously-laden term has different meanings in different religious traditions, as I will illustrate by exploring some Christian and Jewish understandings of redemption and of repairing, or restoring, the world. Are these different understandings a stumbling block for embracing a notion of constitutional redemption or a source of support for such a notion? In Constitutional Redemption, Balkin explained the intellectual journey by which he came to see the "deeper unity" of originalism and living constitutionalism, rather than view them as "irrevocably in contradiction."7 He posited that all these concepts cohere: a protestant constitutionalism, a constitution "that perpetually seeks redemption," and a form of originalism.8 In his new book, Living Originalism, he emphasizes the responsibility of "[p]eople in each generation" to "figure out what the Constitution's promises mean for themselves" and to participate in the task of constitutional redemption.9 This intergenerational project is the focus of my commentary.

I. EXPLAINING THE "CONSTITUTIONAL PROJECT"

A. What Is the "Constitutional Project"?

Balkin uses several terms to describe the constitutional project. I recap them briefly here:

1. It is a "project of self-government": The Constitution, as proclaimed in its Preamble, is "a project of self-government with long-term goals to create a 'more perfect union' that strives 'to establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.'"10

2. It is "an intergenerational project of politics": "The generations of We the People are the participants in the project."11 Here the theme of redemption kicks in, for "[t]he Constitution contains commitments that We the People have only partially lived up to, promises that have yet to be fulfilled, and it is the task of each generation to do its part, however great or small, to help fulfill them and to achieve a more perfect union in its own day. …

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