Richard Primus
Few
constitutional theorists have taught me more than Jack Balkin. Partly that is because he was, in the most
straightforward sense, my teacher. I
took his First Amendment course when I was a third-year law student, and it was
one of the best law courses I ever took: substantive, challenging,
sophisticated, and fun, all at the same time.
Partly it is because one of Jack’s central projects in constitutional
theory—the idea of Living Originalism—is one that I found myself having to
struggle with deeply. On first exposure
to it, I was not just fully skeptical but confident in my skepticism. But the more I thought about it—and perhaps
even more so, the more I permitted myself to confront it non-judgmentally and
see what it might have to offer—the more I realized not just its strength but
its wisdom. And partly, I suspect, it is
because Jack’s perspective on the way that modern communities use old and
sacred texts to construct their values, their imagined histories, and their
group identities was influenced by a set of early experiences that were my
experiences too, albeit thirteen years behind Jack and in South Bend rather
than Kansas City. The experiences I have
in mind include things like spending the dead hours of a Saturday afternoon in
synagogue reading the traditional Hagadah six or seven hundred times. Jack has made full use of the toolbox that
that early education gave him, and in so doing he has helped me see, faster and
deeper than I otherwise could have, things that that experience can make
visible, if one has an especially perceptive guide.
Perhaps it is that last aspect of Jack’s influence on my thinking that leads me to the following characterization of the way I felt when he asked me to contribute to this symposium—a symposium that is supposed to mark a moment in time, and for which he told me I could write about any topic in constitutional law or constitutional theory. What I thought was this: an invitation to write a post about any topic in constitutional law or theory two years after the Trump presidency is a bit like—certainly not exactly like, but at least a bit like—an invitation to write a post about any topic related to Jewish life and society in the year 584 B.C.E., after the Babylonian sack of Jerusalem. We’ve been through a trauma, and there’s a lot of wreckage. It’s not clear that the project has a future. But it’s also not clear that it doesn’t, if we’re willing to understand “the project” as something that can change substantially in response to a changing world. A fair amount of the apparatus survives, after all. It’s even possible that, down the road, the present crisis will turn out to have been an important stimulus toward the creation of something richer than anything that went before. But there could be a long road from here to there, and there are no present guarantees that that road can be successfully traversed. What’s more, any successful next phase will have to cope with the fact that some pretty central things about how we have lived and thought up until now have taken a serious beating.
The principal such challenge for constitutional law and theory right now, it seems to me, is the need for a plausible account of the role and authority of the legislative and executive branches of government. For a long time, it has been the role and authority of the judiciary with which constitutional theory has been most preoccupied. I don’t mean to suggest that that set of questions is any less important now than it has been in the past. But in the Before Time, questions about the role and authority of the judiciary were framed by the assumption that the other branches were considerably less problematic. Not unproblematic, to be sure. Legislation has well-known pathologies, and the apportionment of the United States Senate is a ticking time bomb at the heart of the system’s legitimacy, and so on. And many excellent scholars have written important work about governance, including constitutional governance, as practiced by the elected branches. Nonetheless, all of that work was framed by the understanding that in some fundamental ways, governance by those branches was less problematic than the sort of governance practiced by the judiciary. Democratic elections conveyed authority, promised accountability, and made it reasonable to think that even if enlightened statesmen would not always be at the helm, there would at least be reason for confidence that legislatures would mostly act in the public interest, most of the time, and that executive officers would mostly exercise responsible leadership consistent with the rule of law. In its more enthusiastic forms, that way of thinking supported the ideas of theorists ranging from John Hart Ely to James Bradley Thayer. But the difference between those theorists and most other thinkers in constitutional law, on the question of how to think about the elected branches, was largely a matter of degree. Yes, many people understood that elections and legislation were more problematic than Ely or Thayer (or, for that matter, mainstream judicial doctrine) generally acknowledged. But even those people could mostly keep straight faces, and without heroic efforts, when saying that our system of elections was a pretty good mechanism for producing reasonable government.
It’s still true that our system of elections is probably a better mechanism for that project than any alternative mechanism that could plausibly be established. But it’s harder today than it was ten years ago, let alone forty years ago, to claim much more for it than that. “Reasonable people pursuing reasonable ends reasonably” is not a sentence that should occur to any observer of the current phase of American electoral politics, and American constitutional theory has precious little in the way of resources for thinking about governance under other kinds of conditions. Perhaps we can generate some. The best thing to hope for, of course, is that the system will find its way, before too long, to a better condition that justifies greater confidence in the elected branches. But in the meantime, it is important that people who teach and write about constitutional law struggle to ensure that the assumptions they make about elections and elected bodies are plausible in the present.
Richard Primus is Theodore J. St. Antoine Collegiate Professor at the University of Michigan Law School. You can reach him by e-mail at raprimus@umich.edu.