Constitutional Redemption and Finality
I want to start by saying that you should read Jack’s book. It’s terrific and you’ll learn a lot. My initial post will be brief, as I’m still thinking about what I want to say here.
One question that the idea of “constitutional redemption” raises is when it should yield to “constitutional finality.” This is, of course, just a restatement of the issue presented by stare decisis when a precedent is challenged. In a draft Essay that I’ve written about Jack’s other new book (on framework originalism), I noted that one of our greatest acts of constitutional redemption came from racist Southerners who ratified the Fourteenth Amendment with faith that they would one day restore the “real” Constitution based on white supremacy. And their faith was validated (for a pretty long time) through Jim Crow. The finality of the Fourteenth (and Fifteenth) Amendments was not taken for granted. Was this legitimate or desirable?
The point is that Jack’s emphasis is on how the possibility of redemption maintains our allegiance to constitutional commands issued long ago. That possibility, though, is also destabilizing. All legal systems need some finality that goes beyond adopting a rule of recognition. I’m not clear how that fits into this theory.