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. …