Off blog, Chris persuaded me that I have not spent enough time on the politics of originalism. Independently, I concluded that I don’t mention Jack Balkin often enough. So here’s a good review, by Adrian Vermeule, of Balkin’s recently published Constitutional Redemption.
Neither the book nor the review focuses, immediately, on originalism. However, based in part on the fact that its last chapter is titled “How I Became an Originalist,” I’d wager the book is an apologia for (or perhaps a reinterpretation of) the attitudes that prompted Balkin’s “conversion.” Vermeule summarizes the range of attitudinal options, and critiques Balkin’s fideism:
Balkin makes an idol, and sometimes a demon, of constitutionalism. Progressive constitutional theorists constantly face a large gap between the state of the law and their political ideals; the consequence of their high hopes and expectations is that they tend to oscillate between denouncing the Constitution as a “covenant with death” (in the words of the abolitionist William Lloyd Garrison) and eulogizing it as the embodied promise of political utopia here on earth. Both attitudes overestimate the importance of constitutions and constitutionalism.
A more balanced approach would regard constitutions along the lines sketched by social scientists such as Russell Hardin and Barry Weingast. Human welfare depends upon a modicum of social order, and the first and most minimal requirement of social order is some coordination of expectations. Unwritten constitutional norms or written constitutional rules first and foremost serve to establish order in this sense. If the society is lucky, those rules will also serve as focal points that help to coordinate popular control of the government and thereby enable the people to prevent serious abuses by incumbent rulers or officials. Beyond these essential functions, it is unclear how much constitutional institutions can accomplish, and anyone craving an object for their faith would do well to look elsewhere.
Balkin discusses the dangers of idolatry, but he does not adequately refute the suspicion that the whole enterprise of constitutional fidelity, construed as constitutional faith, reflects a misplaced set of priorities, an overestimation of the role of constitutionalism in political and social life, and a tendency to bow down before a set of idols created by, of all people, politicians and lawyers.
I think Vermeule’s comments are suggestive but slightly off the mark. I doubt Balkin’s view is that constitutional fideism requires the belief that constitutional engagement is more important than other modes of activism to achieving results in politics. (Indeed, constitutional fideism is compatible with assigning minimal political importance to constitutional engagement.) It is more likely Balkin thinks that in order to do any politically effective constitutional theorizing it is helpful (and perhaps, also, moral) for the theorist to have faith in the Constitution, and the exegetical commitment to getting things right [in both senses of the term!] that such faith implies.
I also doubt that Balkin’s constitutional fideism licenses and requires supplication (“bow[ing] down”). I expect, instead, that it licenses and requires wholehearted devotion to the Constitution (which isn’t the same as constant devotion to that practice – no idolatry). The distinction is that supplication demands servility whereas devotion is an engaged, practical and (within the limits of its fideist premises) thoughtful process.
Finally, it is probably misleading for Vermeule to speak of supplication to a set of idols. The Constitution, for Balkin, is not a fixity so much as it is a shifting, kaleidoscopic mass of argumentation.
In sum: faith in the Constitution amounts to wholehearted devotion to this rhetorical framework, and a belief that it leads to just results. Pace Vermeule, it does not require supplication to a fixed set of written and unwritten norms.
Two residual questions. First, why does Balkin think that constitutional fideism is an appropriate attitude to take when participating in constitutional politics? Second, in light of my repudiation of each of its elements, what do I find suggestive in Vermeule’s critique?
I suspect Balkin is a constitutional fideist for practical reasons as well as reasons of conscience. To take the second first, fideism should help a constitutional theorist make moral sense of the oddity that his constitutional analysis [which, as originalism ascends, will be evermore originalist] often coincides with the extraconstitutionally right result. For the fideist, it is an article of faith that the two will be congruent. That faith negatives the competing hypothesis that they’ve been disingenuously jimmied into place.
As for practicality, it is, at least, a piece of folk wisdom that the true believer is often the most persuasive advocate of his creed.
I think Vermeule is right that there’s not much one can do with the Constitution – it is a sociological immobility around which and through which real people pursue their interests – and that’s its job. (As he puts it: “Human welfare depends upon a modicum of social order, and the first and most minimal requirement of social order is some coordination of expectations. Unwritten constitutional norms or written constitutional rules first and foremost serve to establish order in this sense.”) But beyond that – in terms of actually affecting the interests (or their powers) that real people in a condition of minimum social order pursue – it has no role to play.
So, even if, as I’ve argued, constitutional faith isn’t as demanding a posture as Vermeule thinks, Vermeule is still right to ask: why have it? Constitutional fideism “overestimates the importance of constitutions and constitutionalism” by assigning it any importance at all. And if there isn’t a practical point to faith, it might as well be abandoned as not a fitting [theoretical] attitude for getting at the truth.