Constitutional Change and the Problem of Legitimacy

I recently helped a friend study for her Canadian citizenship test. The Canadian government provides an informational booklet to help test-takers prepare, and as we worked our way through it, I was continually surprised by what a large fraction of the booklet was devoted to a description of Canadian history and political development. Had I read, Jack Balkin’s Constitutional Redemption beforehand, however, I would have anticipated its emphasis on history. Balkin’s focus is, of course, not on Canada, but on the American constitutional system. He argues that constitutional legitimacy is fundamentally about the narratives we craft from our history, narratives that link us to that history and let us extrapolate from a present, which includes grave injustices, to an improved and redemptive future. We tell stories about the past, in other words, when we want to teach lessons about which courses to pursue and reject. Through this narrative process, the U.S. Constitution serves as a common source of American’s arguments about how and why the future should be different from the present.

As Balkin notes, the recognition that constitutional meanings seem to change over time, that practices shift from totally illegitimate to entirely acceptable, or move in the other direction, has spurred many of the seminal works on constitutional interpretation. Many constitutional theorists have grappled with the question of how the constitutional enterprise can still be legitimate if the constitution’s meaning can change so dramatically over time. Or, put a little differently, what is it that legitimates these constitutional changes? What makes them more than simply politics, and if they are simply politics–if constitutional meaning follows the election returns or if might is equivalent to right–then why should the losers in particular constitutional struggles continue to participate in the system?

Balkin’s insight is that this feature of constitutionalism, its constant change over time in response to political pressures, is not a problem for constitutional legitimacy; in fact, it is the solution. As Balkin tells it, it is the assurance that constitutional meaning will change that allows all of us to continue participating in a constitutional enterprise riddled with injustice. The inescapable conclusion that constitutional meaning changes over time gives us reason to hope that it will change for the better (whatever our version of better may be), and this reasonable faith in the Constitution’s changeability allows us to pledge fidelity to and invest legitimacy in the Constitution, even while it remains deeply flawed. I believe Balkin’s argument has both a normative and empirical component. Not only is this how things work in practice, he suggests, but it is a desirable way for them to work.

The empirical component of this project reminded me very much of H. L. A. Hart’s famous contribution to the philosophy of law. Unlike his predecessors who described law simply as a sovereign’s command, enforced through the threat of punishment, Hart insisted that we have to understand the internal, psychological and emotional element of law in order to fully understand its nature. Law is not simply a command backed by a threat, Hart explained, it operates on people’s sense of legitimate and proper conduct. By describing the central role of faith and historical narratives, Balkin has made a similar (and similarly important) contribution to the study of constitutional interpretation.

I wonder, however, whether we really need faith that the constitution will be redeemed in order to pledge our fidelity to it? Couldn’t we simply have faith that we are living under the least evil system, even if it is one that consistently permits and perpetuates many evils? Perhaps a faith in something less than redemption might help to answer the question Balkin poses on page 133, about why those who believe that economic inequality is a grave injustice of our constitutional system, seem nonetheless to accept the system’s legitimacy. Perhaps they maintain their faith not because they believe that economic inequality will one day be understood as constitutionally illegitimate, and the constitution will thus be redeemed, but simply because they have determined that the constitutional system, even if it always countenances this injustice, provides a better framework of government than the available alternatives. I also wonder whether it is possible to tell the difference between these two convictions. Is faith in constitutional redemption observationally distinguishable from lack of faith in a better alternative?

I also want to follow up on Joey Fishkin’s question (and on Doug Nejame’s elaboration on that question) about whether the U.S. Constitution, as a written document, is really at the center of this story. If the feature that gives the American constitutional enterprise (one might even say here the American polity) legitimacy is our faith that we can influence it for the better, then the textual Constitution does not need to feature prominently in this account. As long as American practices improve, haven’t we achieved redemption regardless of what role this legal document has played? To the extent that Balkin’s description of constitutional redemption is about the Constitution, then, isn’t it about the constitution in the British sense, as a collection of our traditional, legitimate, and venerated practices, rather than about a text? I share this question.

I also think this question about what Balkin means by the term “constitution” (a single written document or a set of practices that may simply include various documents) has important implications for the arguments about originalism that end the book. As Doug Nejame noted in his first post, Balkin’s theory of constitutional redemption “de-centers” constitutional interpretation, taking the interpretations of social movements to be as important as those of courts. That approach yields Balkin’s fabulous insight that the theory of originalism is, itself, part of the process of constitutional change that the book describes. After all, originalism was born when disgruntled dissenters tried to change the constitutional system by crafting historical narratives about the framers’ intentions to justify their claims. I think it is important to note, however, that text mattered to these original, conservative originalists in a way that it does not matter to Balkin’s theory of framework originalism.

The original theories of originalism answer the question of how to make meaning from a constitutional text. The constitutional text, for these originalists, is not a framework upon which to construct competing and evolving narratives. On the contrary, most theories of originalism view the text of the Constitution as the Constitution, regardless of the evolving practices that surround it. Indeed, conventional theories of originalism center on the proposition that written constitutions are essentially constraints. Their originalism is a theory about how we must interpret constitutions in order to maintain their capacity to bind us. I believe their approach is much like one that Josh Chafetz describes in his contribution to this symposium. Conservative originalists believe that we must “lash ourselves to the mast of historical accuracy [we might say historical meaning] because the siren song of truly free constitutional narratives is too dangerous.” This is not to say that written constitutions shouldn’t change, according to these originalists, only that legitimate change must occur through formal, textual amendments, not through evolving historical narratives, built upon older narratives, merely resting upon a textual foundation. History, for these conservative originalists, is not a resource from which to argue about the best direction for constitutional change, as it is in Balkin’s framework originalism. Instead, the history of a particular piece of text features in most theories of originalism as the only viable constraint on constitutional meaning

Framework originalism may thus be read as an answer to conservative originalism, one that tells these originalists that they are asking the wrong questions. Unlike traditional originalism, framework originalism accepts constitutional change as inevitable, and counsels constitutional theorists to stop worrying about how to ensure that constitutions can bind us. Under a theory of framework originalism, the broad principles enshrined in our constitutional document are legitimate precisely because they continue to serve as a touchstone for the changes (hopefully redemptive changes) our constitutional system will inevitably undergo.

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