Posted by: captainfalcon | September 17, 2010

I Have Got Jack Balkin’s Goat

[Final Update: After my first update I googled “Jack Balkin + Simon Blackburn” and came across Andrew Koppelman’s year-old article “Why Jack Balkin is Disgusting” which anticipates almost everything in this post (although, strangely, not the connection it draws between Jack Balkin and Simon Blackburn). So much for originality. I recommend Koppelman’s article, though.]

This essay, like most of Balkin’s work, is objectively insightful. It also gives insight into the original (so to speak) mind of Jack Balkin. I summarize its content, then turn to what it tells us about the author.

Balkin credits Sandy Levinson with distinguishing between two orientations towards constitutional theory: constitutional protestantism and constitutional catholicism. (If Balkin is right that Levinson’s distinction traces back to 1988 then it is likely indebted to Ronald Dworkin’s concept of legal protestantism, which developed, at the latest, in 1986.) These two orientations frame constitutional theory at both the normative and descriptive level. A constitutional catholic regards the pronouncements of various authoritative organs – the Court and the academy – as both constitutive of the law (mandatory) and predictive of future legal developments. A constitutional protestant, on the other hand, denies that the pronouncements of various authoritative organs are mandatory, and also denies that they have much predictive power. In (potentially misleading) slogan form: “each citizen has the right to decide for him or herself what the Constitution means.”

These two frameworks suggest different research programs. In his essay, Balkin focuses mainly on the differences they adumbrate in descriptive theory of living constitutionalism (roughly: how operational constitutional meaning, as distinguished from actual constitutional meaning, evolves):

Protestant constitutionalism leads almost inevitably to the study of social organization and culture. Once you acknowledge that many individuals have different views about the Constitution, you must also acknowledge that these individuals, like good protestants, do not simply keep to themselves. They create congregations. They form groups of like-minded believers and go out into the world and try to convert others. Thus, a focus on protestant constitutionalism leads naturally to a focus on social movements and political parties as engines of constitutional change.

A further implication of constitutional protestantism’s popular theory of operational constitutional change – the idea that no central authority has a monopoly on operational constitutional meaning – is that the Constitution is “self-enforcing.” Put another way, “[i]t relies on different actors, with different interests and values checking each other. If other people aren’t doing things the way you want them to do it, you will insist that they do things your way; that is, you will engage in schism and demand return, restoration and redemption of the true Constitution.”

[A] self-enforcing Constitution in a political culture like that of the United States will likely produce (1) perpetual constitutional dissensus, and thus various forms of protestant constitutionalism on the left and the right; (2) perpetual changes in the Constitution-in-practice caused by mobilizations and counter-mobilizations, and thus various forms of living constitutionalism; and (3) perpetual calls by various parties to return, restore and redeem the Constitution, and thus various forms of originalism.

By contrast, catholic constitutionalism is “symbolized by [the previous generation of] scholars like Laurence Tribe or Owen Fiss, [for whom] living constitutionalism is largely the product of legal professionals– lawyers, scholars, and members of the federal judiciary–who work out and develop the meaning of doctrinal ideas and public values.” Far from self-enforcing, the Constitution is enforced from above, by an elite, cohesive cabal: consensus, not dissensus, is the watchword.

Interestingly, Balkin notices that the influence of (what he calls) “modern conservative originalism” is best explained within the descriptive framework of constitutional protestantism. Just like radical Christian reformers – inter alia those who wanted to return to the Biblical text – could only exist after the Protestant Schism, so too there is only a place for radical constitutional reformers – inter alia those who want to return to the Constitutional text – in a world of constitutional protestantism. From a constitutional catholic’s perspective, originalists must be marginal.

Though Balkin – with his focus on descriptive constitutional protestantism – only obliquely addresses it, his discussion suggests there exist two common routes to a normative constitutional protestantism. That is: there exist two archetypal stories about how a constitutional theorist becomes a normative protestant.  The direct approach takes place entirely within the normative realm. The theorist proceeds from a theory of constitutional meaning that is at odds with authoritative practice to a theory of judicial review that denies that authoritative practice is mandatory. The narrative is scholastic: hermeneutics drives the conversion.

The second indirect approach runs from the descriptive to the normative realm, and the narrative is political: expediency drives the conversion. The theorist – perhaps persuaded by Sandy Levinson – begins as a descriptive constitutional protestant. He therefore thinks operative constitutional meaning is constructed by the rhetoric of popular movements and political parties, and so comes to doubt the practical relevance of rarefied doctrinal analysis; even if the doctrinal analysis accurately explicates the actual law (assuming there is such a thing) it has no bearing on what becomes operative law (and, consequently, no bearing on what kind of society ours will be). In light of their profound practical irrelevance, the theorist comes to see purely epistemological commitments to a particular doctrinal methodology as the byproducts of a disembodied, well, scholasticism. They are indulgences – like positions staked in the “Angels on a pinhead” debate. He thus engages in a normative retrenchment; his commitments to a constitutional methodology are no longer rooted in epistemological concerns, but in practical ones. In light of the fundamental irrelevance of correct doctrinal analysis, the theorist turns to persuasive doctrinal analysis. His question: how do I use constitutional rhetoric to make the society I want?

Descriptive constitutional protestantism has persuaded him of the practical irrelevance of a correct analysis of authoritative pronouncements of law. But – just as the Catholics feared – when authoritative practice isn’t mandatory anarchy is the result. The indirect approach leads from descriptive constitutional protestantism to normative constitutional protestantism, and the latter collapses into a pragmatic nihilism.

It is in light of this that Balkin’s post gives insight into his original mind. Balkin is, first and foremost, a political progressive. He is co-editor of The Constitution in 2020, whose publisher describes it as “a powerful blueprint for implementing a more progressive vision of constitutional law in the years ahead.” He is also, he tells us, an “originalist” since 2005. The way he describes the conversion:

I became an originalist beginning in 2005 [because] I am a protestant constitutionalist, and ultimately I became convinced that the interpretive theory that best captured my views about constitutional change was a textualist theory, one that offered the text’s original meaning as a framework for constitutional redemption.

It’s a sly phrase, a “framework for constitutional redemption.” He is not saying that the text’s original meaning is the correct meaning of the constitution. He does not work within a framework for constitutional restoration. He is saying, instead, that working within the originalist framework offers the best chance of making the constitution good. This is equally compatible with a restorative aim (the Constitution will be good if its original meaning is restored) or a revolutionary aim (in light of the stranglehold that “modern conservative originalism” has on constitutional rhetoric, the best chance of making the Constitution progressive is to steal the ground from under them). Given that Balkin’s story has many of the hallmarks of the indirect approach, I suspect he owns the latter goal.

Near the end of his essay Balkin writes the following:

In the last chapter of Constitutional Faith, Sandy asks whether or not he should sign a copy of the 1787 Constitution (i.e., one without the Bill of Rights or the Reconstruction Amendments) at a bicentennial exhibit in Philadelphia. Ultimately he decides to sign the document, but he does not sign because he has any faith in the text. Rather, he signs it because he has faith in what he calls an ongoing conversation about the Constitution and politics that the American constitutional project makes possible…I for one feel good knowing that Sandy has such faith in us, individually and collectively…He believes–to quote those immortal poets, the Who–that the kids are alright: that the American people, despite their disagreements, will find the right path, and that things will ultimately work out ok.

Faith in the American people – it is an ostensibly populist sentiment Balkin endorses. But one wonders, in light of his purely strategic deployment of originalist rhetoric, how much manipulative control he wants to exercise over the “ongoing conversation.” Is his a blind faith or – that arch (everything about Balkin is arch) warhorse of protestantism – faith through works?

Update: One possible response – outlined here – is to deny that I’ve gotten Balkin’s goat by denying that there’s any goat to be got. That is, there is nothing fishy about Balkin’s strategy because it is the only game in town. There is no such thing as a “purely methodological” constitutional theory. They are all political. Balkin’s attitude is not cynical, it is honest. I flag, without explaining, the parallels between this approach to constitutional semantics and Simon Blackburn’s quasi-realism about moral semantics. Maybe someday I will spin it all out.

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Responses

  1. I think summarization of Balkin’s post was on the money, but why assume that he aspires towards anything more than a descriptive view of Constitutional protestantism (which was what I got out of the original post, sort of a how-things-work/trending-current-explanation-overview). Thus, would not the post be best addressed by countering his claims about the role of authority figures in forming operational constitutional law, rather than finding contradictions in any supposed normative approach to constitutional protestantism.

    Perhaps I am not sufficiently familiar with his current normative platform, and how that ties into both constitutional law and his self-professed textualism to get the relevance.

  2. I wouldn’t say I was aiming to find “contradictions” in Balkin’s normative constitutional protestantism. My claim is that his embrace of descriptive constitutional protestantism caused his acceptance of normative constitutional protestantism. But the causal connection – described in the paragraph on the “indirect approach” – leads Balkin to the “evangelical” wing of normative constitutional protestantism; much like the evangelicals co-opt Biblical language for their own, contemporary politico-cultural aims, Balkin’s project is to co-opt originalist rhetoric for progressivism.

    You are correct that the linked essay does not, by itself, substantiate this allegation. If all you know about him is what you read in his essay then there remains a wide range of possible explanations for Balkin’s 2005 shift to originalism.

    Two further facts render my hypothesis – that the shift is born of a descriptive constitutional protestantism (which, in turn, persuades him of the irrelevance of methodology per se, as contradistinguished from methodology as a means to political ends) – more plausible. The first is that ever since his shift Balkin has written a series of articles arguing that originalism licenses (1) Roe v. Wade, (2) mandated affirmative action, (3) the modern administrative state and, most recently, (4) the individual mandate. The correspondence of originalism’s deliverances with Balkin’s particular politics is surprisingly convenient. (Not that right wing originalists don’t do the same thing – Randy Barnett, for example, thinks originalism entails that we have a set of negative rights that is precisely co-extensive with those that modern libertarian theory implies. But Barnett gets there through an eccentric theory of the Ninth Amendment’s text whereby it swallows the whole. Balkin is subtler – text and history are manipulated to achieve he desired methodological outcomes.)

    The second fact is that before Balkin converted to originalism he was notorious for his thesis, articulated in his 1998 book Cultural Software, that (in the words of David Charny) “What constrains constitutional law is not a set of rules, but a set of rhetorical norms, themselves unstable and shifting over time, that determine which moves are legitimate.”Thus, as he put it in 1997, “[o]ur theories of the Constitution are makeshift attempts, reflecting the concerns of our era, but dressed up as timeless claims about interpretation.” (I took both these quotes from a recent SSRN article – which I only discovered after writing this post – entitled “Why Jack Balkin is Disgusting.” (The title is not serious, and the article is written by Northwestern law professor Andrew Koppelman.) Unhappily, it pretty closely anticipates everything I said. Here it is: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1506506.)

    Anyway, the first fact suggests that Balkin engages in some “motivated” originalist reasoning; the second suggests he knows exactly what he’s up to and why.

  3. Ah, ok. With the subtext, things make much more sense.

  4. […] and Balkin wants in on it. I analyzed his “strategic deployment of originalism” here; RPW explains that it’s just lawyering-as-usual: [L]awyers, unlike serious philosophers [but, […]

  5. […] This view has been long in the making. Ronald Dworkin gave it its first, naïve*, formulation in his reply essay to Justice Scalia in A Matter of Interpretation. More recently, Jack Balkin has developed and applied a less philosophically innocent – a more arch version of – the approach. (Balkin’s version – which seeks to legitimize in originalist terms abortion, the administrative state, and affirmative action – comes on the heels of his theory that constitutional law consists in a set of contingent rhetorical devices that theoreticians and practitioners must use to advance their interests. Its cynicism is, in Andrew Koppelman’s word, “disgusting.” See, also, here.) […]

  6. […] and history are indeterminate, no doubt.  And Balkin has taught that a gifted legal rhetorician who consciously, but without ever breaking character, pursues a […]


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