Constitutional Televangelizing

My thanks to Danielle Citron for organizing what has been an excellent set of essays. There is so much rich material here that I don’t know really where to start by way of response. I thought I might simply point out a few places in these posts that I thought were especially worthy of note, and one cluster of ideas that might lead to future research.

What’s “the Constitution”?

One important question arises in Emily Zackin’s, Doug NeJaime’s and Joey Fishkin’s posts. What is the “Constitution” that people should believe in, or seek to redeem?

In the book, I distinguish three ideas. The first is the constitutional text. The second is the Constitution-in-practice: this is the constitutional system as an institution, including its conventions, practices, institutions, and constructions. The third is constitutional culture: this is the distribution of beliefs (and beliefs about beliefs) that members of the community have about the Constitution and about who has authority to interpret it.

Now when I say that the constitution is fallen, or in need of redemption, I’m really referring to the Constitution-in-practice. However, the need for redemption probably also reflects the shortcomings of belief in the constitutional culture.

In order to improve the Constitution-in-practice, changes in constitutional culture may also be necessary as a prerequisite. That is why I say that what is redeemed is not only a document, or a set of institutions, but also a people.

What role does the text play here? The text is a symbol of the institutions and the culture in which they are embedded. It is also a symbol of the nation and its trans-generational political project.

But, under this account, is the text really necessary? Does it even count as “the Constitution”? Isn’t the “Constitution” that we are talking about more like the British Constitution, which is not a written text but a set of practices and conventions?

In the book, and especially in Chapter 9, I argue that in American constitutional culture and in American constitutional institutions, the constitutional text has a special role. This role distinguishes the American Constitution-in-practice and American constitutional culture from the British model of constitutionalism, and indeed, from the constitutionalism of most other countries that I am aware of.

The text is a legal document that provides a basic framework on which government institutions are built. It contains rules, standards, and principles that set up basic elements of the constitutional/governmental system that have to be fleshed out and made into the Constitution-in-practice. In this sense America’s Constitution is like the written constitutions of many other countries.

But that is not the only reason why the text is important. America has a distinctively protestant constitutional culture. In this culture the text plays an important symbolic role: People take the Constitution out of their pockets and read it aloud; they quote it in public discourse; they argue about it almost as if they were discussing sacred writ. Indeed, people argue about what is in the constitutional text even if they have never read it! They refer to the text as if it were the embodiment of their aspirations about justice and human rights. In this way, the text comes to symbolize American government and American identity, even if in fact it could not possibly constitute them fully. Thus, in American constitutional culture, the text is a metaphor or synedoche– a part that stands for a greater whole.

I don’t know any other constitutional culture with this degree of veneration (some would say fetishization) for the constitutional text as a “sacred” object. If you know of another, it would be worth studying in depth. (By the way, there’s a great recent book by Gary Jacobsohn, Constitution Identities, that compares the United States, Israel, and India on how their constitutions are connected to notions of national identity).

There is a third point, and it’s perhaps the most important. In American constitutional culture, the text’s symbolic significance gives it enormous rhetorical power: the text stands as a source of aspirations that critiques existing law and existing arrangements and holds them to account. In addition, the text symbolizes Americans’ individual and democratic ownership of the Constitution. The text, available to all, symbolizes that it belongs to all, that it was made by us and belongs to us. It is something we point to when we want to talk back to government officials, and especially to members of the judiciary. The text symbolizes that the Constitution belongs to us, and not to the judges.

Thus, I like to say that in American constitutional culture, the American Constitution is not only basic law (i.e., a legal framework); it is also “higher law” and “our law.”

Again, I don’t know of another country in which the text plays precisely the same role in the nation’s national narrative or constitutional culture. There’s a lot of interesting comparative research to be done on how different constitutional cultures are constituted and the role that the text plays, or doesn’t play.

We shouldn’t confuse the fact that the text plays this special role in American constitutional and political culture with the claim that the text is the only thing that is redeemed over time. To speak about the redemption of the text is also a figure of speech, a synecdoche or a metonym. Rather, the “redemption” of the text actually stands for the redemption of a set of institutions, a nation, and a people; the text nevertheless plays a crucial cultural and symbolic role in that redemption, in addition to serving as the actual legal framework of certain features of government.

One could certainly have a constitutional culture in which the text did not play that role, and in which people did not imbue it with the same symbolic significance. But that is not the case in the United States. To understand how constitutional change occurs in the United States, it’s important to recognize that we have a protestant constitutional culture in which the text–or rather the symbol of the text– frequently makes an appearance, even if the text is not actually doing the work that people sometimes think it is doing.

Contemporary conservative originalism tries to use the text as part of a larger social and political mobilization. But that is not the only way to use the text or to call on original meanings and the commitments of the framers. In Chapter 8 I offer another version, framework originalism, that is more self-conscious about the role that the text plays in constitutional culture and recognizes that the text is only a framework on which much else has to be built. It nevertheless takes the text’s aspirational language seriously—not as a set of fixed commands from the past but rather as a set of aspirations for the present and for the future. It is not the only way to do originalism, but it is, I think, the best way.

Ordinary Politics and Constitutional Politics

Joey’s essay notes that people use narratives about the meaning of the nation in both constitutional argument and ordinary political argument. There is no clear dividing point between where ordinary politics leaves off and constitutional politics begins. Narratives are used in ordinary politics, and they are also used in constitutional politics.

Perhaps equally important, debates about ordinary politics can become constitutionalized if norm entrepreneurs are willing to talk in these terms. That is what happened in the women’s movement and the gay rights movement. People began to assert their grievances in constitutional terms; moreover, members of social movements began to explain– and understand–their lived experience in terms of denials of constitutional rights. This is not a necessary occurrence in politics, or even in American politics; it has happened because of the ways that Americans have traditionally used constitutional language in tandem with rights discourse and discourses about citizenship.

To see how constitutionalization can happen with even the most ordinary of political disputes, consider the recent debate over the debt ceiling. The fight over the debt ceiling was made salient because of the rise of the Tea Party; the Tea Party, like many other insurgent social movements, sees constitutional stakes in many different political issues. Once the Tea Party began strongly to influence politics, conservatives began to consider how to use the debt ceiling for political leverage; this, in turn, was tied to the Tea Party’s agenda of shrinking the size of government—an agenda that had also constitutional overtones of “limited government.”

Suddenly a quotidian issue– the debt ceiling– became constitutionalized. Faced with a political insurgency making political threats, liberals saw a constitutional issue where there had been none before; they invoked section 4 of the Fourteenth Amendment. Conservatives in turn invoked Article I, section 8, which gives Congress the power to borrow money. Both sides debated the President’s Article II duties to take care that the laws be faithfully executed. Seemingly out of nowhere a political dispute also became a constitutional dispute.

This is a frequent occurrence in American political culture; disputes weave in and out of constitutional politics and constitutional language in unpredictable ways. What is constitutional in one era becomes deconstitutionalized in another, and vice versa. Much depends on political entrepreneurs and how they express grievances. But the resources of the Constitution, and constitutional language, are always in the background, available to be asserted when the time and circumstances are right. It is not a question of what is “truly” a constitutional issue; it is rather a question of how constitutional culture intersects with political culture at any point in time.

Constitutional Televangelism

I wanted to close by mentioning Joey’s and Doug’s very interesting exchange on the role of elites and civil society organizations in articulating grievances and expressing them in constitutional terms. They point out that although the idea of a protestant constitutionalism might seem to romanticize individual conscience, in practice ordinary citizens may not do much of the constitutional argument or articulation of legal positions; a great deal is done by “elites”: members of civil society organizations, politicians or lawyers. Much of the force of these constitutional arguments in American constitutional culture depends on the authority that these various players have and whether they are willing to stand up for and argue for certain positions.

Joey helpfully uses the metaphor of televangelizing; it’s apt because it suggests the idea of trusted experts or political entrepreneurs broadcasting to large numbers of people, mediating and explaining constitutional grievances and arguments. The broadcasting metaphor has its limits; there’s probably a bit more interactivity than that; even so, as Joey says, we tend to look to people we trust for guidance on these matters, and we adopt their constitutional claims because we trust them, not because we’ve done the legal research ourselves. Thus, key individuals and organizations play important roles in shifting what groups believe is plausible or implausible constitutionally. The metaphor of constitutional televangelizing also suggests that the media—including media owners, pundits, and journalists—are potentially important constitutional actors. And entertainers like Jon Stewart or Stephen Colbert who mix entertainment and news also play a role in shaping what is constitutionally plausible and implausible.

Constitutional culture depends on claims making by people whom others regard as trustworthy and authoritative, and the social configuration of trust and authority—who is trusted and who is not; who is willing to stand up for a claim and put their reputation on the line and who is not—may matter greatly to the success of novel constitutional claims.

The debt ceiling debate is a perfect example. Various liberal law professors like Garrett Epps and myself were making arguments in public about the applicability of section 4 of the Fourteenth Amendment. I even did a legislative history of section 4 that was picked up by other people in the blogosphere. Other bloggers and pundits also got involved. Treasury Secretary Tim Geithner recited the text of section 4 of the Fourteenth Amendment out loud to reporters. (Talk about Constitutional protestantism!)

Then Professor Larry Tribe, a liberal icon, asserted in the New York Times, a liberal establishment newspaper, that there was simply nothing to the 14th amendment argument. Soon afterwards President Obama himself weighed in, noting that he had talked to his lawyers and they had told him it was “not a winning argument.” One senses, however, that if Obama wanted to put his Presidential authority and that of his Administration behind the argument, (as Bill Clinton said he was willing to), the argument would have been much more powerful in public and it might have affected the course of the negotiations.

Although Obama portrayed the constitutional question as one where he didn’t really have a choice, it was probably more complicated than that. After all, Obama had just been involved in a major debate among his administration’s lawyers about the legality of the Libya intervention. While some of his lawyers thought that the intervention was legally troublesome, other lawyers had argued that, based on a complicated five-factor balancing test, the Libya intervention was perfectly legal because after April 4th it no longer constituted “hostilities” within the meaning of the War Powers Resolution. In the debt ceiling case, we must assume that Obama heard various legal opinions and decided to choose among them for strategic and political as well as legal reasons.

We don’t know what would have happened if Obama had decided to make constitutional claims early on in the debt ceiling debate, as Clinton had recommended. It might have helped him or it might have hurt him, because it would have let Congress off the hook. Nor do we know whether, in the future, a Republican President will suddenly find section 4 an attractive way to shut down a Democratic Congress that tries to use the debt ceiling to push for its agenda. But we can say that Obama’s failure to get behind this argument significantly limited how far it would likely move along the “spectrum of plausibility” (discussed in Chapter 7)  from off-the-wall to being widely accepted.

The metaphor of constitutional televangelism is interesting because it suggests a research agenda: how exactly do the nodes of influence and authority—as I call them in the book—shape constitutional culture and move claims from off-the-wall to on-the-wall, and from merely plausible to widely accepted? Is it possible to measure this influence, and could we map these shifts over time? There’s a lot one could do here. Perhaps someday legal scholars working with political scientists, communications scholars, and sociologists might be able to measure what I’ve only been able to suggest theoretically in Constitutional Redemption.

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2 Responses

  1. Shag from Brookline says:

    The commentators and Jack Balkin’s responses have been great. I hope to read “Redemption” fairly soon, as I have long admired his writings, including at his Balkinization Blog. And I look forward, if my aging eyes last, to reading Jack’s “Living Originalism” when it is available.

    I also admire Kurt Lash’s writings. I just finished his July 2011 article “‘Resolution VI’: The Virginia Plan and Authority to Resolve ‘Collection Action Problems’ Under Article I, Section 8” which challenges Jack Balkin’s views. Kurt Lash presents a well reasoned argument. I would expect at some point a response from Jack Balkin. While Kurt Lash’s article does not specifically address Jack Balkin’s “Redemption” and only passingly references his “Living Originalism,” it would be difficult not relating his article to them. I’m concerned that perhaps Jack Balkin may have locked himself into a corner with his recent adoption of originalism. Perhaps some of the non-originalists out there will be heard from.

  2. A.J. Sutter says:

    May I demur that it’s precisely the evangelical character of your otherwise very interesting argument that I find hard to accept. Your book struck me as a blend of, to use your analogy, religious studies and theology. I didn’t have any trouble with your religious studies use of religious themes when talking about how the Constitution is regarded in American culture. But your theological uses of religious metaphors and tent-revival rhetorical tropes — such as when you talk about “what attitude members of the public must have toward the constitutional project in order for it to be legitimate” @1 (emphasis added), and the anaphoretic passage about fidelity @127 — make my neck get stiffer than usual when evangelists come ringing the doorbell. Not least because there are some things I put higher than the US Constitution, and I think the insistent, theological use of religious imagery in this context actually encourages a sort of idolatry.

    But I suggest your religious images also create some difficulties for your case that are more rhetorical than halachic. And more’s the pity, because some of your nicer insights would do just fine without them.

    1. For starters, the use of the word “faith”. It has (at least) a double sense: trust (which I’ll call faith_1), and religious faith (faith_2). A lot of the technique of the book seems to consist in blurring this distinction. Here’s a passage from p. 2 (emphasis added):

    The legitimacy of our Constitution depends, I believe, on our faith in the constitutional project and its future trajectory. Fidelity to the Constitution requires faith in the Constitution. And our faith in the Constitution depends, in turn, on the story that we tell ourselves about our country, about our constitutional project, and about our place within them.

    This passage reads perfectly well with the word “trust” substituting for each incidence of “faith”. Not so this sentence from p. 11:

    The danger in constitutional faith is constitutional idolatry.

    This only makes sense if read as faith_2. But to read the earlier passage retrospectively with faith_2 instead of faith_1 renders it clearly false, specifically with faith_2 as predicate of “depends” and “requires” (I’m happy to serve as the falsifying instance). Your deliberate blurring of these two connotations makes it harder to have faith(_1) in your overall narrative.

    (BTW elsewhere you say, “Lawyers are merchants of faith: they trade on faith, they trade in faith” (@101). This is very grand, but what, for example, transactional lawyers such as I do all comes down to faith_1, not faith_2. And usually it’s the trust between the parties to the deal that counts most, followed perhaps by trust that if someone screws up they will get sued.)

    2. In your last chapter, you list four advantages for framework originalism: (i) focusing on the Constitution’s text and principles, (ii) bridging lay and professional understandings of the Constitution, (iii) providing a dissenter’s theory, offering leverage against the status quo, and (iv) offering a way for individuals and groups to pledge faith in the Constitution’s restoration and redemption (@234). Had you stopped after the first three, it would have been enough. Each of them is an independent and appealing justification; you don’t really need to drag in the problematic idea of “redemption” to make it work.

    3. And here are a couple of reasons why the notion of “redemption” is problematic:

    (a) First of all, the metaphor has an obvious flaw pertinent to its target domain: in the ultimate theological redemption, the Temple will be rebuilt and the priests will come back. Not exactly what “protestant” (or rabbinic) Constitutionalists should hope for.

    (b) The deeper flaw is that redemption contains the idea of progress (e.g. @26). Even though you occasionally refer to setbacks, you seem to assume a certain ratchet-like quality to progress, so that once some civil right has been found in the Constitution it won’t ever get lost again: “We cannot be sure that in 2080 people will not look at the constitutional system of 2010 just as we now view the Constitution in 1940 — when Jim Crow was still powerful, and women were without rights” (@130).

    Of course you’re right. But what if the Constitutional system of 2080 looks like the system in 1940? And what if the people in 2080 feel that such a state of affairs constitutes “redemption” of the Constitutional promises as they see them? We already see hints of this evolutionary process, with the erosion of some Warren-era precedents. Who’s to say some Court in the future won’t think that a “penumbra” is as bogus as “tripartite citizenship,” and throw out the right to privacy (perhaps persuaded by an amicus brief from the Google Professor of Law at some ivied institution)? In every generation there’s not only a different Constitution-in-practice, but a different Constitution-as-aspiration. Some generation with a practical situation that might horrify us might nonetheless feel it’s hit the jackpot, “redemption”-wise.

    (c) Probably, though, the happiness of those yahoos in 2080 will be short-lived, as new controversies and new injustices arise, and practice and aspiration slip out of phase with each other. Which just goes to show that although the metaphors of redemption and progress may appeal to some pious Americans, it’s probably not a good model of what actually happens. While one can only hope there may be some progress in the sense you point out when you say that we don’t have any problems today as big as slavery (e.g. @132, 134), that progress might be fitful, incremental or without any obvious goal, and most of the future may involve our oscillating back and forth on many issues. (I’m not convinced, BTW, that America’s descent into plutocracy, mass unemployment and loss of hope necessarily is more benign than slavery was in 1840, or, more conservatively, that it will stay so indefinitely.)

    There are many other metaphors one might use to suggest the ideals, commitment and continuous effort necessary for constitutional culture — but based more on images of, say, maintenance and enjoyment, not progress. For example, a marriage requires ideals, commitment and continuous effort, and can be very rewarding, but without any expectation that one’s spouse is going to eventually approximate one’s idealized view of him or her when you first met. A garden requires constant tending, weeds need to be pulled, some things die, other things bloom beautifully for a while and may even yield fruit for many years, etc. — but there isn’t any finality. The game of Whack-a-mole reminds us that the price of democracy is eternal vigilance; and for sake of a democratic society, lawyers, civil society and others may feel very committed to whacking ’em when they see ’em.

    There may even be a “parable of the plankton” one can base on the so-called paradox of the plankton in marine biology. Although classical ecological theory predicts that when many species compete for the same nutrients within the same patch of ocean there should ultimately be an “equilibrium” with one winner, instead one finds continuing diversity of species, and no equilibrium. Could that have some features in common with a healthy democracy? I’m not sure how far the analogy can be pushed, but if I had to put my money on comparing democracy to a natural phenomenon based on many contending communities, versus a Biblical allegory with a very ambivalent ending (see (a), supra), I think I’d put my money on nature.

    That’s not to say that Americans will find plankton, gardens or moles even remotely as persuasive as a Biblical allegory. Instrumentally, Bible stories will win. But at least for this reader, the redemption story arc falls within the categories of being not true, exaggerating, or leaving out important and relevant details, as you set out at pp. 26-27. And being told that I “must” approach the Constitution with something akin to religious faith really, really bugs me. Much else in the book has a great deal of merit; I hope you can find a way to work a free exercise clause into your future expositions of this theme.