The lawprofs at  Concurring Opinion have been holding an online symposium on Yale lawprof  Jack Balkin’s book, Constitutional Redemption, Political Faith in an Unjust World, described as a liberal’s constitutional credo in contrast to the conservative originalist view. 

Not having read the book, and not needing to for the purpose of what follows, I borrow  Danielle Citron’s description:

Constitutional Redemption envisions the Constitution as a wiki-like project of tinkering and revision in which each “generation has an obligation to flesh out the Constitution’s abstract commitments and build out institutions.”  How do the American people fulfill that obligation in practice?  As Doug [NeJaime] underscored, Jack isn’t necessarily suggesting that lay people read the Constitution’s text and try to convince others to see it their way.  They could, and the written nature of the Constitution gives them the opportunity.  More often though, elites tend to mediate on their behalf, producing narratives that shape how the public understands the constitution and how the courts interpret it.

The point, I believe, is that Balkin’s view of the Constitution’s vitality rests in its abstract nature, subject to evolution in the vision of each generation’s understanding of its application to their problems and world.  Clearly, this isn’t an homage to Justice Scalia.

But then, this post isn’t really about Balkin’s alternative constitutional vision, but rather Dan Solove’s contribution to the symposium.

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. 

Many of the lawprofs use the word “inspirational” to describe Balkin’s vision, and indeed, there’s a definite religious fervor to their words, the belief that humans, despite our faults, can make this work, and rework.  While Dan clearly knows the catechism, he breaks from the flock.

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? 

This is a monumentally bold statement from a scholar.  Adherence to the faith that the “elites” in charge of the show are inherently intelligent, fair and of good faith is at the foundation of any constitutional philosophy, Balkin’s included.  We’re a nation run on wondrous platitudes, drilled into the minds of school children and believed by those who want to sleep at night.  I could add to this litany, as I’m sure every reader could as well, but Dan makes his point, that our institutions have deteriorated and no longer fulfill the nation’s aspirations and expectations, whatever they may be.

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.

Many in the public have reached this conclusion.  Many more continue to believe, their faith unshakable until the day they have the misfortune of becoming participants rather than onlookers.  Myths erode when reality sets in.  Perhaps the greatest believers in the myth are the elites themselves, who need to believe that they serve a higher calling because they refuse to see what they do through cynical eyes.  I’ve never met a judge who can’t excuse and explain his decisions to his own satisfaction, comforted by his self-assessment that he’s contributed to a better system no matter what.

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.

Dan challenges the tacit belief that some magic hand will reach down from the sky and fix all the incredibly poor choices and problems that ensued and save us from ourselves.  We were handed a document that provided a roadmap of extraordinarily vitality and we ripped it, little by little, to shreds in order to serve whatever transitory end seemed like a good or necessary idea at the time.  But now, our paper is in tatters and we can’t get the pieces to fit anymore.  And still we pretend that we can use it to get where we’re supposed to be.

Dan has lost faith in the efficacy of the Constitution because of both its structural evolution and the nice men and women entrusted with its execution having usurped its ownership for their own purposes.  He questions whether it really scales as well as we think, as our nation and its political institutions have grown.  He doubts the people entrusted with its faithful execution are worthy of our faith.

From my lawyerly perspective, the myth of the law, enshrined in the platitudes carved into the courthouse lintels, are empty words.  They consist of a rule riddled with exceptions.  They consist of procedures that add to our misery, even when we approve of the end result.  There seems to be a sound rationale for each baby step, but we always seem worse off for having made the trip.

The efficacy of the Constitution depends on our faith that it ultimately prevails over the mess we’ve made of it, regardless of how we play the interpretation game.  One of the most dangerous platitudes, that it may be flawed but is nonetheless the best system man has created, keeps us muddling through in the hope that its true. 

What if we’ve made such a mess of it that it’s no longer true, that we’ve so screwed it up that there’s no hope for the Constitution to be anything more than an old piece of paper under glass that reflects what a great nation we might have been if only we hadn’t blown it?  What if our slavish adherence to the paper, which we’ve dishonored over the centuries, now prevents the best of us from making the changes needed to save its soul and our nation from our carefully crafted morass?

Dan Solove has lost faith in our ability to make the myth real, and challenges whether this sacred document has become a yoke that constrains us from undoing the damage.  He has strayed from the flock because he no longer believes in fairy tales.