At one notable point of Jack Balkin’s new book, Constitutional Redemption, he integrates Grecian and Judaic traditions. In the Aristotelian tradition of the Poetics, Balkin informs the reader that constitutional theory may be conceived as a tragedy with the American people the tragic heroes because it is their flaws–be they “fear, anger, prejudice, greed, or shortsightedness”–that have led to tragic results like the willingness to tolerate or participate in slavery, gender inequality, or religious intolerance. On the other hand, constitutional failure may also be thought of as a comedy of errors, where the players are ludicrous because they do not recognize their own shortsightedness or the harms of acting on demeaning stereotypes.
The way forward, as Balkin sees it, is through progress; a progress that neither idolizes the past nor dismisses it out of hand. He analogizes constitutional progress to the advancements of Jewish history. Although Jews today, he tells us, do not follow identical practices of their ancestors–for instance, they do not visit the temple in Jerusalem yearly–they have maintained a connection to their tradition through change. The Jewish identity, then is not merely a static construct, but a liquid one that retains the maxims of its forefathers even as it advances with the changes of the Diaspora, the pogroms and the Holocaust, and the establishment of the State of Israel. Erich Fromm, in You Shall Be as Gods, makes a similar point: By the time of the prophets the Biblical text had evolved from the Torah’s injunction to settle in the land of milk and honey to the realities of Assyrian and Babylonian captivities.
So too with the tragic comedy of constitutional development. While it remains intact, it’s clauses are often understood by courts, politicians, and the public in very different ways than they were at times of ratification and amendment. Jurisprudential theory that contains identifiable standards but allows for the evolution of interpretation explains why the Original Constitution, which, borrowing language from the prophet Isaiah, William Lloyd Garrison called a “covenant with death” because of its protection of slavery, had so much relevance to the civil rights movements of the contemporary United States. In large part, progress has been achieved by amending the Constitution at the realization of tragic flaws.
Epiphany through tragic error, however, is neither necessary nor preferable–it is possible to imagine the will of the people being exercised for the general welfare without first creating a tragic situation demanding change. But in reality the tragedy typically plays out before social groups emerge around a cause to demand constitutional betterment (through judicial opinions, the formal amendment process, or informal legislative devices) The prophets, in the American drama, are drawn from the people themselves–as were the Jewish prophets–to announce the existence of human rights principles, to identify alternatives to current practices, to dissent and protest unconscionable conduct, and to envision improvement.