Reconstruction and Resistance

By Roosevelt, Kermit | Texas Law Review, November 1, 2012 | Go to article overview

Reconstruction and Resistance


Roosevelt, Kermit, Texas Law Review


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.

Introduction

Jack Balkin defies categorization. More precisely, he defies categories. His most recent books, Living Originalism1 and Constitutional Redemption,2 transcend the dichotomies of constitutional theory. Repeatedly, they show that what conventional wisdom views as a strict opposition (originalism versus the living constitution, for instance) is in fact not an opposition at all, or that a traditional taxonomic dyad (constitutional law and ordinary politics, for instance) is incomplete. His arguments are forceful, elegant, and, I believe, generally correct. Frequently, in fact, they bear the hallmark of truly deep insights: they seem obvious in retrospect. It is possible that these two books will mark a real advance in constitutional theory.

But it is also possible that they will not. There are reasons that people cling to the theories and conceptual structures that Balkin undermines, and those reasons are not purely intellectual. There is a political element to constitutional law, of course; there is also a political element to constitutional theory. The presence of political considerations complicates the reception of any constitutional theory.

Politics also complicates the theory itself. To Balkin's credit, he acknowledges this. The books spend a substantial amount of time discussing how moral and political visions inform constitutional theory and become constitutional law. But they also argue for particular constitutional results, and this creates some tension within the enterprise. It is difficult for a single project, even one contained in two books, to employ both an internal and an external perspective-to explain how constitutional entrepreneurs succeed in making their views law and also to engage in the entrepreneurial venture. As when a magician reveals how the trick is done and then performs it, some of the conviction is lost.

The tension between the internal and external perspectives, I believe, is not fully resolved within these books. Balkin's external perspective, historicism, seems to offer scant normative footing for his internal arguments, and his account of constitutional change, partisan entrenchment, does not make up for this lack. He turns, then, to the idea of redemption, but I will suggest that this is theoretically not fully satisfactory. Nor, however, is it necessary. Properly understood-understood as Balkin understands it-the Constitution itself supplies the magic that seemed to be missing. In what follows, I will try to demonstrate this. Part I of this review describes the state of constitutional theory into which Living Originalism and Constitutional Redemption come. Part II discusses the possibilities they offer, considering in particular Balkin's distinction between the meaning of a constitutional provision, which is fixed, and the applications of that meaning, which may change over time. I will offer a slightly different way of thinking about which constitutional provisions are intended to have fixed applications (I will distinguish between forward-looking and backward-looking provisions, rather than rules and principles), but I believe that the distinction is both correct and crucially important to constitutional theory. Part III draws out some implications of the distinction for the process of constitutional change. I believe that my account here is broadly consistent with Balkin's views, although it also differs in some ways. I talk about constitutional politics, rather than constitutional construction, and I suggest that my version offers greater normative purchase. Part IV takes a more critical turn. It examines the idea of redemption-the stance Balkin suggests we should take towards the Constitution. …

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