Friday, May 18, 2007

Constitutional Redemption


I've just posted the second installment of my theory of constitutional interpretation on SSRN. Entitled Original Meaning and Constitutional Redemption, it is a response to critiques of my earlier piece, Abortion and Original Meaning, which argued for an originalist approach I call the method of text and principle. The two articles, plus the commentators' criticisms, will appear in a special symposium issue of Constitutional Commentary this fall. The article sums up many of the themes of my previous work. Here is the abstract:

This article responds to criticisms of my theory of constitutional interpretation offered in Abortion and Original Meaning,, and expands on various parts of the theory.

Fidelity to original meaning follows from our commitment to a written constitution that preserves enforceable legal meaning over time. Originalist lawyers and scholars shifted from original intention and original understanding theories to original meaning in the 1980s to answer important criticisms of originalism. They assumed that original meaning originalism would support most of the same criticisms of judicial activism and living constitutionalism that had motivated the turn to originalism. The distinction I emphasize between original meaning and original expected application was not salient in these debates. Nevertheless, once we recognize the full implications of this distinction, original meaning originalism is fully compatible with living constitutionalism.

Constitutional interpretation is premised on faith in the constitutional project. This is a faith that the constitutional system as a whole is worthy of legitimacy and respect or will come to be so over time, even if important aspects of the document and its associated institutions are imperfect and unjust. Interpretive fidelity thus requires faith in the redeemability of the Constitution over time; hence my theory of interpretation is a theory of redemptive constitutionalism.

The Constitution's text and principles are central resources that make this redemption possible. Like many constitutions, the U.S. Constitution contains open ended clauses that delegate many questions to future generations and leave ample room for constitutional construction to flesh out and implement constitutional language. Constitution makers adopt these clauses– and many other features of constitutions besides-- to channel and discipline future political judgment, not simply to forestall it.

A successful constitution like America's must simultaneously serve three functions: It must be basic law– a framework for governance that allocates powers and responsibilities. It must be higher law– a source of aspiration and a reflection of values that stand above ordinary law and hold it to account. And it must be our law– an object of attachment that we see as the product of our collective efforts as a people. Viewing the Constitution as “our law” involves a collective identification with those who came before us and those who will come after us. The Constitution as “our law” constitutes us as a people that extends over time. This collective identification is a constitutional story that allows us to regard the Constitution as our own even if we never officially consented to it.

The theory of text and principle serves these three functions better than theories that tie constitutional principles closely to original expected application. A theory that rejects delegation to the future does not function well as basic law because it misunderstands why constitutional adopters adopt open-textured language; it cannot operate as higher law because it so distrusts aspirationalism. Finally, it fails as our law, because it does not allow us to see our present day values– for example, our commitment to sex equality- as the application and fulfillment of past principles and commitments. It must treat these achievements as mistakes that we now maintain out of reliance on precedent or because they would now be too politically embarrassing to discard.

Social and political movements have repeatedly argued for change by calling on the constitution's text and its underlying principles. Constitutional change occurs because Americans persuade each other about the best meaning of constitutional text and principle in their own time. These debates and political struggles help generate Americans' investment in the Constitution as their Constitution and they create a platform for the possibility– but not the certainty- of its redemption in history.

Lawyers, judges and legal scholars have no normative obligation to listen to the claims of any particular political or social movement. However, as a descriptive matter they regularly translate claims of constitutional politics into claims about constitutional law. Constitutional theories offer a language for us to defend and criticize the Constitution-in-practice with the hope of moving it closer to our ideals of what the Constitution should be. They allow us to fight for the Constitution's redemption over time. Struggles over constitutional interpretation are part of the process that makes the Constitution “our law,” that generates our attachment to it– even in “dark times” when our views are not shared by the majority– and that helps support its overall legitimacy.


Sorry, sounds like sophistry. Might be politically useful sophistry, and I understand that is the job of constitutional law professors, but really! Constitutional redemption? As if there exists some "constitutional soul" that has just been forgotten and buried? "Original meaning"? Do you have EEG hooked up to Madison's corpse? "Faith" in the constitutional project?

You're just re-writing "living constitutionalism" in evangelical language, which only further obscures the debate on what Constitution we should have. It's that very obscurantism that has gotten in this mess - hagiography of the founders, worship of the Constitution as a sacred text, and utopian ideas of legalism.

I'm quite tired of the danger to rationalism by pandering to mythicism.

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You're just re-writing "living constitutionalism" in evangelical language, which only further obscures the debate on what Constitution we should have. It's that very obscurantism that has gotten in this mess - hagiography of the founders, worship of the Constitution as a sacred text, and utopian ideas of legalism.

I don't know, Random Sequence. I see your point, but it's quite natural for secular rationalists to make the criticism. If Prof. Balkin's "evangelistic pandering" appeals to and persuades those less inclined toward the rationalist view, it's not an appeal to so dangerous a form of "mythicism" as some I've heard lately.


I agree on the political aspect - as I said in my comment. On the other hand, every time we adapt in that way, we help move the window. So sure, it's not a big deal to put "In God We Trust" on the dollar bill, or to stick "Under God" in the pledge, but down the road suddenly you've given more ammunition to your opponents.

In the long term, not wise - not wise at all. Everyone is looking for a reasonable compromise. The only problem is, there is no reasonable compromise. You don't compromise on your axioms. In this case it means, you don't compromise on the basis of legitimacy. JB is doing exactly that - he is using mystical legitimacy, which can only help the mystifiers. It's not a clever judo move, but a declaration of surrender.

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