Introducing the Constitutional Redemption Symposium

It is an honor to introduce Jack Balkin and the participants in our online symposium on Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press 2011).  From tomorrow through Thursday, we will be discussing Balkin’s important new book, which builds on themes of faith, narrative, and redemption.

Constitutional Redemption describes constitutional interpretation as a dynamic project, one of mistakes, evil, revision, and reform.  Social movements, citizens, lawyers, politicians, and judges are pivotal players who “nudg[e] the constitutional-system-in-practice closer to their preferred interpretations of the Constitution.”  Their participation is a “necessary, if not sufficient, condition for producing a respect-worthy system.”   Through social movement contestation and political agitation, some practices, such as segregation, sex discrimination, or sodomy laws, lose their legitimacy “in the minds of the public,” rendering views that were once thought reasonable and acceptable to be “deemed unreasonable or even off-the-wall.”  A story of improvement “underwrites Constitutional legitimacy.”  And “each of us has the opportunity and the responsibility to decide what the Constitution means, and to decide whether public officials — including members of the Supreme Court — have been faithful to that meaning.”

Constitutional Redemption contends that the project of constitutional interpretation warrants, and perhaps demands, our committed engagement and belief.  Balkin’s theory of framework originalism suggests that we must have faith that the Constitution’s promises can be redeemed, that our constitutional system can be made a “more perfect union.”  This leap of faith is a gamble because the future of constitutional law and politics is uncertain, and we can’t be sure how the future will judge the present.  But, as Balkin explains, the “constitutional story offered in this book argues that redemption is possible–that is its statement of constitutional faith–but only if the American people choose well and act well.”

Constitutional Redemption raises many provocative and important questions.  Can we have faith in the project of constitutional interpretation if its boundaries are ever changing, many times for the worse, and there’s little assurance that past evils won’t re-emerge triumphant?  Are all social movements worthy of the project, even if they seek to dismantle constitutional rights and guarantees?  Do citizens have a robust responsibility to engage in the constitutional project as part of their faith?  Is all of this freedom of interpretation and change frightening, and might some be deterred from believing in the Constitution’s redemptive power due to their fear of what could happen without fixed, enduring principles?  Is the best version of originalism one based on the public meaning of the text and its principles rather than on the way the framing generation would have expected the Constitution to be applied?

To discuss these and many other issues, we have invited an exciting group of constitutional scholars:

Josh Chafetz

Joseph R. Fishkin

Mark Graber

Bernadette A. Meyler

Douglas NeJaime

Alexander Tsesis

Emily Zackin

We are thrilled to have Jack Balkin aboard to participate in the discussion of his terrific book.  My co-bloggers will be joining the conversation as well.  We are excited for the discussion to begin.  Welcome!

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2 Responses

  1. A.J. Sutter says:

    Jack Balkin mentions, apropos of “how [he] became an originalist,” that “One of the most important problems in constitutional theory [sic] is accounting for, explaining, and justifying legitimate constitutional change” (@ 226). There isn’t any mention in the book of folks like Kelsen, Radbruch, or even Hart or Raz, all of whom treated of this topic. (Much less of Habermas or Sternberger, of whose concept “constitutional patriotism” this book is a passionate manifestation.) Nor, so far as I could tell, is there any discussion of foreign jurisdictions. As pointed out in a recent book by Zachary Elkins & al., the average lifespan of a constitution is around 19 years. While this average is skewed by, especially, Latin American and Caribbean countries, even France has had 6 and Japan 2 constitutions within the past 200 years.

    The “constitutional theory” invoked in this book seems more to be an upper case Constitutional theory, specific to the US. I hope you will have some comparativist discussion in this symposium.

  2. A.J. Sutter says:

    PS: and hope, too, that Prof Balkin will fix the typo when the book comes out in paperback.