Losing Our Religion

I thoroughly enjoyed Jack Balkin’s Constitutional Redemption, and I found myself largely in agreement with many of Jack’s major claims.   But overall, I find it hard to share his optimism.

At its core, Balkin’s constitutional jurisprudence is one founded upon faith — a faith in redemption.  He concludes his book with the following paragraph (SPOILER ALERT):

Faith in the Constitution is really faith in a succession of human beings working through a framework for politics, adding to it as they go, remembering (and misremembering) what previous generations did, and attempting to persuade each other about how to make it work.  To believe in this project is to believe in progress despite human imperfection, and in what Abraham Lincoln called the better angels of our nature.  If we want to believe in the Constitution, we must believe that, flawed as we are, we can create a better world than the one we inherited.  If we want to have faith in the Constitution, we must have faith in ourselves.

And to that I say “amen.”  Although this sounds right descriptively, and I believe it is correct, part of me has lost faith.  The very structure our Constitution sets up, when mixed with contemporary views and politics, might at its core be showing its age and not up to the challenges ahead.  Despite hope that the ship will sail on, the ship might have too many holes in it to remain seaworthy for long.

Why do I feel this way?  Congress is deeply divided and can barely act unless under dire circumstances.  Money and special interests are infecting politics and exercising undue influence.  The size of our country is so large now that I wonder whether our system scales up particularly well.  Districts are Gerrymandered, increasing polarization and radicalization.  Supreme Court confirmation hearings are a joke, where prospective justices must give a nod to the tired old shibboleths of how they are umpires and neutral.  Our legal system is ridiculously inefficient, where the costs of resolving disputes often outstrip the money at stake.  Our criminal justice system resolves 95% of cases by plea bargains, with defendants readily signing away their rights.  I could go on and on.

The rule of law is an essential myth that holds together our judicial system.  But what if we no longer believe in the myth?  We might want to believe in the rule of law, but what if we don’t?  After Bush v. Gore, many Americans lost their belief in the rule of law.  They saw a Court that ignored its own precedent and just did what it wanted.  The rationale in Bush v. Gore made sense, but the problem wasn’t that the Court was being nonsensical — it was that the Court was being inconsistent.  And the Court failed to explain this inconsistency; instead it exacerbated the issue by trying to limit the precedential effect of the opinion.

If people start to believe that judges are not engaged in legitimate exercises of Constitutional interpretation, then the myth of the rule of law begins to erode.  When that myth is gone, when “God is dead” so to speak, can the courts regain legitimacy?   All the rhetoric of neutrality, of calling balls and strikes — even more realistic claims — might not be able to resuscitate the myth of the rule of law.

The Constitution is incredibly hard to amend, and we’ve twisted it into interpretive pretzels in order to build our current system of government.  But our institutions are in need of a wake-up call.  They need to be refreshed, rethought.  Will that happen?  I don’t know.  I want to have faith that we’ll muddle through and revitalize our system of government.   But I’m no longer so hopeful we will.  The problem is not just caused by We the People — it is also based on how our structure of government has evolved and the way that structure has shaped politics.  We might be able to break free from that structure to reform the system, but I fear we might view the Constitution as too sacred for the more dramatic reforms we need.

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22 Responses

  1. Orin Kerr says:

    In explaining why you have lost faith, you say:

    Supreme Court confirmation hearings are a joke, where prospective justices must give a nod to the tired old shibboleths of how they are umpires and neutral.

    In explaining why others have lost faith, you say:

    The rule of law is an essential myth that holds together our judicial system. But what if we no longer believe in the myth? We might want to believe in the rule of law, but what if we don’t? . . . . If people start to believe that judges are not engaged in legitimate exercises of Constitutional interpretation, then the myth of the rule of law begins to erode.

    I’m curious how you can square these two claims. It seems to me that the “tired old shibboleth” of the first excerpt is the same as the “essential myth that holds together our judicial system” of the second.

  2. Daniel Solove says:

    The rule of law holds our system together, but it is a myth. When people begin to see it as a myth and see no connection between the rhetoric about it and the way justices judge, that makes the rhetoric just rhetoric. For the rhetoric to really mean something, it takes belief in the myth. And my point is that the belief is eroding for some, leaving just rhetoric that sounds emptier and emptier. The solution is to somehow either re-establish faith or belief in the myth, redefine what the rule of law really means, or find some new myth to believe in.

  3. Orin Kerr says:

    The belief is eroding for who, though? If you look at public opinion polls on approval of the Supreme Court in the last decade — since just before Bush v. Gore — the support is basically constant. Approval is pretty much always from 50% to 60%, and disapproval is about 30% to 40%. To be fair, it may be that faith in the Supreme Court is down among those on the Upper West Side. But then it’s up among those in Texas, so it all seems to balance out. The Gallup Numbers are reprinted below.


    “Do you approve or disapprove of the way the Supreme Court is handling its job?”

    Approve Disapprove Unsure
    % % %

    51 39 10

    8/31 – 9/2/09
    61 28 11

    59 30 11

    50 39 11

    48 38 14

    51 39 10

    51 36 13

    60 32 8

    56 36 8

    42 48 10

    51 39 10

    52 38 10

    59 33 8

    60 29 11

    58 28 14

    62 25 13

    59 34 7

    8/29 – 9/5/00
    62 29 9

  4. TJ says:

    Orin, approval ratings are a terrible way of discerning whether people believe in the myth. People can think that judges are highly political but like the results.

    Rather, I take a much better sign that the myth is eroding in that these days you basically never see reporting of a judicial decision without seeing the lineup of the votes by the political party of the appointing president. This ostensibly irrelevant piece of information (if one believes the myth) is now deemed the most important piece in conveying a judicial decision to lay people. One did not see this 50 years ago.

  5. Orin Kerr says:


    Two responses.

    First, you claim that there has been a change in the practice of reporting on judicial decisions between today and 50 years ago. Are you sure? What’s the evidence of that?

    Second, Dan’s claim was that people were losing faith. If that is true, I would think there would be at least *some* kind of shift in public opinion polls. Your hypothesis that people think judges are highly political but like the results is an interesting empirical claim, but it doesn’t match my experience or the studies I have seen. My sense if that when people like the results, they tend to think that the opinions are correct, not that the opinions are just political and they lucked out that they agree with the politics. There was a recent empirical study of law person attitudes towards judicial decisions that I think sheds some light on this:

  6. Daniel Solove says:


    The claim that people are losing faith in the rule of law doesn’t necessarily imply that they will dislike the courts. They might just view the courts differently, as akin to political actors. For example, a person might lose faith in the media as a non-partisan enterprise yet still love a highly-partisan media. There is the connotation that “losing faith” implies disappointment, but that might not be the case with many people.

  7. A.J. Sutter says:

    One of the problems with religious metaphors like “losing faith” is that they’re quite potent — someone who’s really lost religious faith is likely to feel much worse than simply disappointed. Though that’s more of a comment on Dan’s metaphor than on his substantive point.

    Dan is also right to lament the view that the Constitution is “sacred.” Zachary Elkins, Thomas Ginsburg and James Melton offer us a different frame in a recent book, where they compare the longevity of the US Constitution to a (real, French) woman who gave up smoking cigarettes only 5 years before her death at age 122, and whose diet consisted of olive oil, port wine, and two pounds a week of Swiss chocolate. The features that account for the relative longevity of other constitutions (which they list as: flexibility, i.e. the ability to adjust over time; inclusion, i.e. the involvement of important groups in society in the design and maintenance of the constitution; and specificity, in both detail and scope) are lacking from our own. Money, special interests and other forces have an unfair advantage in designing and maintaining it; and their work is made easier by the document’s inherent ambiguity.

    Religious metaphors only encourage us to draw the wrong conclusions about our outlier status, just as someone could draw the wrong conclusions about smoking from the case described above. If we liberated ourselves from those images, maybe we’d see more clearly what needs to be done to fix our Constitution and our politics.

  8. TJ says:

    Orin, you are right that both are empirical claims, and we have no solid evidence on either question either way. On the first, I am not sure–it is simply my impression.

    On the second, in one sense I share your perception that when people like the result, they think that the opinion is “correct” and nonpolitical. But there is an interesting doublethink going on here. Democratic and Republican Senators/activists/etc. alike know very well that judges are highly political. That is why they spend so much time fighting about confirmations. That is why they decry any decision they don’t like as “activism.” But they turn around and think that the decisions favoring their side are objectively correct. In a broader sense, they don’t really mean it.

  9. TJ says:

    To make Dan’s point another way (at least I think it is the same point) and refute Orin’s perception of a contradiction, the myth Divine Right is essential to the constitutional system of England. But (1) coronations are still a joke, (2) nobody believes in the myth, and (3) the Queen of England has very high approval ratings.

  10. Bruce Boyden says:

    I’m a bit confused. If no one believes in the myth of Divine Right, that would seem to pretty much refute the idea that it’s essential.

  11. TJ says:

    Bruce, that is Orin’s confusion as well, and all I can say is that my example is to show that there is no contradiction. Divine Right is essential to the English system, since otherwise how do you justify an unelected hereditary monarch who styles herself “Queen by Grace of God” and is crowned by the Archbishop? Thus, the myth is both essential to the system, and a joke at the same time.

  12. Bruce Boyden says:

    But if no one believes in it, then no one is using it to justify an unelected hereditary monarch. Right? Or are you saying people are using a theory they don’t believe, and they know no else believes, to justify something they do believe in? That would be truly bizarre. It would be like using phlogiston, knowing that phlogiston doesn’t exist and knowing that no one else thinks phlogiston exists, to explain heat. Who would do such a thing, and why?

  13. A.J. Sutter says:

    TJ, what evidence do you have for the notion of divine right still being a part of the constitutional framework of England? Ever since the Glorious Revolution in 1688, when William of Orange was made King of England by a Convention Parliament (or, some might argue, by a prior appointment by peers of the realm), divine right seems not to be a justification for the monarchy.

    It’s not enough to say that the continued existence of a monarch means that divine right could be the only justification. (The Swedish constitution, for example, negatives that view.)

  14. TJ says:

    Bruce: They are using a theory that nobody really believes, and know that nobody believes, to justify a facade that nobody believes but yet is maintained. The facade is that the monarch is the ruler and thus everything is done in her name. In reality, of course, she has no power. But much effort goes into maintaining the facade.

    Similarly, everyone knows that judges are political and are not neutral umpires. But we spend an enormous amount of time and effort pretending otherwise.

    A.J. Sutter — her style is “Her Majesty Elizabeth the Second, by the Grace of God, of Great Britain, Ireland and the British Dominions beyond the Seas Queen, Defender of the Faith.” Of course, everyone knows that she keeps her throne not by God’s Grace but that of the British people. But that is simply a reflection that nobody actually believes in Divine Right.

  15. A.J. Sutter says:

    “There, but for the grace of G-d, go I” — many commoners, too, could say that their current status is the result of divine grace. But that’s not divine right.

    Even today, the literal translation of the title of the Emperor of Japan is “heavenly sovereign” — but per the Japanese constitution, all sovereignty is in the people, and the emperor is just a symbol. You haven’t shown that the Queen’s title is anything more than a symbolic formula. You need to show that it has constitutional weight, as it did in, say, the Tudor era.

  16. TJ says:

    A.J. Sutter, you are not getting my point, and I can’t explain it any more than I have already. Yes the Queen’s title is a symbolic formula with no real weight. That is the point of the analogy, not a bug.

  17. Bruce Boyden says:

    TJ, it’s not a facade if no one believes in it. It might be vestigial verbiage, some sort of ritualistic incantation perhaps, but it’s not a facade, as it is completely transparent to all concerned. There’s no such thing as an invisible facade.

  18. Joe says:

    “Of course, everyone knows that she keeps her throne not by God’s Grace but that of the British people.”

    If you believe in God’s grace, and some do, what of that?

  19. A.J. Sutter says:

    TJ: Nobody disagrees its symbolic, with no real weight. But your statement at #9: “the myth [of] Divine Right is essential to the constitutional system of England,” is what you haven’t shown to be currently the case.

    As for facades no one believes in: Bruce, you might come to Japan someday, where there is a word describing exactly that: tatemae. It describes something said to save face, but not typically intended to be believed (though it can be a long and painful process for foreigners to learn to recognize that). Interestingly, the kanji (Chinese-style characters) for the word reflect the same architectural metaphor as the English. But I agree, that’s not pertinent to the Queen’s case.

  20. TJ says:

    Bruce, Merriam Webster defines “facade” as “a false, superficial, or artificial appearance or effect,” which is exactly what this is. In any case, I think we have the basic point down.

  21. TJ says:

    And to totally digress, when your wife asks you “Does this dress make me look fat?” she expects to you give a false response, she knows it is a false response, you know she knows it is a false response, and you will give the false response. That is a facade that nobody believes in. The concept is not unique to East Asia.

  22. Bruce Boyden says:

    We’re not talking about idiomatically correct responses though — AJ, I think that is what distinguishes your example. That is why I explicitly excepted ritualistic incantations or vestigial terminology; language is full of that sort of thing, phrases or entire sentences that do not have their literal meaning and are not intended by anyone (except maybe foreigners and young children) to have their literal meaning. We’re talking about essential *beliefs*, no matter how expressed. TJ, for your last example, my spouse and I don’t engage in that dialog, so I really have no way to evaluate what’s going on there. But I have to imagine it’s something like telling your child to say “I’m sorry” after knocking down his younger sibling. Is he really full of regret? No, of course not; but you are teaching him the appropriate response after committing a social wrong, which is really no different than saying “thank you” after receiving something. I’m not even sure “thank you” has any literal content at all.

    By contrast, this whole debate has been about not empty phrases necessary to support the system, but *beliefs* necessary to support the system. You’ve been maintaining, I believe, that there is a myth — a belief — that is essential to our justice system, which is that judges are impartial. Either that belief is necessary or it isn’t. If it is necessary, then people actually have to hold the belief. You can’t *actively* believe that p and also that not-p, that judges are impartial and also that they are not impartial. (You might be able to do this if you haven’t fully thought through your set of beliefs, but I don’t see that as what you’re arguing. You seem to be arguing that it is essential that people believe that judges are impartial, and yet no one believes that judges are impartial. I do not think “essential” means what you think it means.)

    Your dictionary definition I think supports my view. A facade has to have some sort of appearance or effect on the observer to qualify as a facade. The notion of impartial judges seems to have no appearance or effect on the beliefs of observers under your view, since no one believes in it. If something interposes no appearance or effect to cover whatever lies underneath, it’s not a facade, it’s a window.