From Text to Performance Tradition

Which is the “real” Constitution, the one on the page, proliferating across contexts on the web, or the lived tradition, unified by the common trajectory of a people and practices established and modified over time? This, I think, is one of the most fascinating questions raised by Jack Balkin’s rich and insightful book on Constitutional Redemption. Whereas earlier approaches to the Constitution analogizing it with either literature or religion tended to emphasize the constitutional text and individual conscience, Balkin shifts focus to the groups and social movements that have waged struggles to claim constitutional meanings and to what I would call the performance or acting–as opposed to the textual–traditions of the Constitution.

Under Balkin’s account, faith in the Constitution does not appear to be faith in the constitutional text, but in the constitutional project, a project that unifies a particular people, the American people. Constitutional redemption can, then, be identified as the redemption of that people. Although Balkin never explicitly draws the analogy, he seems to suggest that the American people might be thought of as the “chosen people” of the Constitution just as Jews have identified as the “chosen people” of the Bible. This vision of the constitutional project depends much more on a collective and lived set of practices than most prior forms of constitutional interpretation have. From this emphasis on collectivity many aspects of Balkin’s narrative follow. For example, rejecting the idea that constitutional legitimacy stems from “reasonableness” and “individual conscience” alone, Balkin explains that citizens’ assembly in groups and social mobilization both are more significant than a focus on individual conscience would suggest and often serve to alter conceptions of reasonableness themselves (61).

Nevertheless, elements of an earlier hermeneutic tradition remain visible here. Hans-Georg Gadamer, who furnished the most comprehensive twentieth-century version of hermeneutics, identified the existence of the work of art with its reproduction in each particular context, in relation to its audience or reader. As Gadamer explained in his magnum opus, Truth and Method, speaking of the dramatic work, the play does not exist completely apart from the spectator, but instead, “In being played the play speaks to the spectator through its presentation; and it does so in such a way that, despite the distance between it and himself, the spectator still belongs to play” (115). Similarly, for Balkin, “the proper analogy . . . is not law as literature, but law as music or drama” (91), which means that “the performer has a double relationship: to the author or composer of the text, and to the audience or community before whom the performance takes place” (91-92). This audience or community takes on substantial significance in Balkin’s narrative and prevents the performer from focusing exclusively on the constitutional text.

While this modification significantly improves upon the conventional law and literature account of the relationship between the individual and the law, whether constitutional or otherwise, the analogy with drama could be carried even further than Balkin takes it. At the Shakespeare Association of America conference last spring, I heard a fascinating paper by James Marino of Cleveland State University that discussed, among other things, the divergences between the textual tradition of Shakespeare’s plays and the acting tradition and lamented the extent to which focus on the former has usually entirely displaced the latter. Adding this element to Balkin’s account would suggest that the legal performer connects not only to the collectivity of his or her audience but to the collectively established acting or performance tradition, whcih itself has furnished a gloss upon the text or revised that text according to the demands of the stage. The legal performer too here remains part of a collectivity that he or she can transcend or simply conform to, but that continues to shape the performance as significantly as the demands of either text or audience.

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