This book attempts both to describe and to exemplify a new rhetorical strategy for American political liberals, so they can convey their vision of the Constitution in a manner more emotionally appealing than they seem to be managing currently. To borrow an analogy from the author (JB), a professor of law at Yale, the book is at its best when operating in the mode of "religious studies," i.e., disinterested description of how most Americans regard the Constitution. Where it fails, albeit not without some interesting and salvageable arguments, is when JB is in "theological" and evangelical mode -- i.e., speaking as one who shares the beliefs he describes, and trying to persuade us that we "must" share those beliefs, too.
JB conceives of rhetoric as "a means of helping others to see what is true and what is false, by explaining matters in terms they can understand, by meeting them halfway, and trying to argue from common values and common understandings" (@13). In the present context, these common values are contained in the Judeo-Christian religious tradition. Many Americans, he observes, treat the Constitution very much like a religious text, carrying copies in their pocket and referring to it themselves, as they would the Bible. Yet for these Americans, the real constitution isn't the literal text in their pockets; much less is it the convoluted chains of Supreme Court decisions interpreting that text. It's the Declaration of Independence. The Declaration "is our constitution because it constitutes us, constitutes us as a people 'conceived in liberty, and dedicated to a proposition.' ... The Declaration is the constitution that our Constitution exists to serve" (@19).
This second, aspirational constitution (the first being the literal text) can be interpreted by anyone, not just judges, professors and other authority figures. Borrowing an analogy from his mentor and friend, Sanford Levinson (U. Texas), JB distinguishes these two styles of interpretation as constitutional "protestantism" and "catholicism," respectively. American Constitutional culture is "protestant," he claims. (Which, BTW, may be fine to say in a religious studies sense, but risks annoying Catholics and non-Christians if you're trying to persuade them that's what they "must" be.)
There's also a third constitution, the "Constitution-in-practice" (CIP), based not only on Court decisions but on how our society works at a given moment in history. The CIP is "fallen, flawed and imperfect, but not doomed to remain as it is" (@16). The "redemption" in the book's title is the idea that the Constitution can be "redeemed," by making the CIP eventually more like the aspirational version in the Declaration. JB's thesis is that belief in the possibility of this redemption is the "attitude members of the public must have toward the constitutional project in order for it to be legitimate" (@1).
From a "religious studies" viewpoint, I think that JB is probably correct in his assessments of how Americans, or many of them, view the Constitution and the Declaration. He's also right about the importance of Biblical narratives. (The influence of the "law and literature" movement in legal academia is very evident in the book.) The Tea Partiers instantiate what he is talking about, as does a currently sitting governor of one of our largest States who deliberately flouts US Supreme Court decisions in order to conduct prayer services at public sites. JB's writing in this mode is wonderfully clear and forceful. Even some aspects of the "theological" portions of the book, such as JB's analyses of leading discrimination cases and of Lochner vs. New York (1905), are illuminating. I also found the last chapter's description of "framework originalism" -- a form of originalist interpretation that political liberals can be proud to rely on -- intriguing and prima facie persuasive. (Since JB tells us that it's going to be the subject of its own monograph to be published later this year, I won't expand on it here.) My overall rating of the book, somewhere between 3.5 and 4 stars, is based on these strengths.
But as even the cover foreshadows, the book seems intended primarily as a theological tract -- or more like an inspirational book that you'd find in a rack not far from the pharmacist's desk if a law school ran a Walgreen's or a Long's. [Prof. Balkin has chided me in two emails that the point of the cover is that « You cannot tell whether the sun is rising or setting », and that this theme of ambiguity is « everywhere in the book ». Perhaps his closeness to his text has blinded him to other possible associations of his imagery; or perhaps he never visits suburban chain drugstores.] There are several reasons why the book doesn't succeed in this mission; the rest of my comments in this review will focus on these. Roughly speaking, the comments fall under two heads: matters of sensibility or taste; and matters of reasoning, particularly about the concept of "redemption". (And just so you know where I'm coming from, let me mention that I speak as a political liberal from the same religious background as JB.)
A. Sensibility first:
1. At times, JB seems possessed by the dybbuk of a tent revival preacher, as in his long rant on fidelity to the Constitution @ 127 ("... Fidelity is not about texts; it is about selves. ... Fidelity is the home of commitment, sacrifice, self-identification, as well as the home of legitimation, servitude, self-deception and idolatry. ..." ). These rhythms are so artificial as to feel calculated and manipulative. Despite my admiration for JB's writing skill in other portions of the book, passages like this made reading it feel overall quite uncomfortable -- like the kind of discomfort you get when a salesman uses your name just a little too often during a conversation.
2. There's certainly something manipulative in the way JB uses the word "faith." The word has (at least) a double sense: on the one hand, trust (let's call it faith_1), and on the other, religious faith (faith_2). A lot of the technique of the book seems to consist in blurring this distinction. Here's a passage from p. 2, where I've put a blank in each place where the word "faith" occurs: "The legitimacy of our Constitution depends, I believe, on our _____ in the constitutional project and its future trajectory. Fidelity _to_ the Constitution requires _____ _in_ the Constitution. And our _____ in the Constitution depends, in turn, on the story that we tell ourselves about our country, about our constitutional project, and about our place within them." This passage reads perfectly well with the word "trust" filling in each blank. Not so this sentence (@11): "The danger in constitutional _____ is constitutional idolatry." This only makes sense if read as faith_2. But to read the earlier passage retrospectively with faith_2 instead of faith_1 renders it clearly false. As an American lawyer, I'm sworn to uphold the Constitution, but I for sure don't regard my fidelity to the Constitution as requiring a sort of religious feeling about it. JB's deliberate blurring of these two connotations makes it harder to have faith(_1) in his overall narrative.
3. Personally, as someone who reserves religious faith for matters a bit higher than the Constitution, I felt that encouraging a sort of religious feeling for it runs the risk of inspiring idolatry in its true theological sense (not the "constitutional idolatry" JB speaks of @83-102). YMMV.
B. Now reasoning:
Prof. Balkin wrote to me soon after I posted my initial version of this review, protesting that I had misrepresented his argument. Indeed I had misunderstood some points; to avoid making further errors, I'll include quotes from his emails, in guillemets (« »). I found his argument no more convincing afterwards.
JB's notion of "redemption" relies on the idea of progress (e.g. @26). JB justifies introducing the notion of progress in this way: "[W]e are giving an account of legitimacy in a liberal democratic society [sc., as distinguished from what JB calls a "traditional" one], and so a modernist attitude is hardly surprising. In general, moderns tend to believe almost instinctively that progress is a good thing -- even if they often disagree about what it is ..." (@49). And he allows himself some optimism: "We cannot be sure that in 2080 people will not look at the constitutional system of 2010 just as we now view the Constitution in 1940 -- when Jim Crow was still powerful, and women were without rights" (@130).
But as he later clarified to me: « progress is not assured, redemption may backfire, things may get worse, and everything may spiral downwards. Other people's parochial vision of redemption may win out, and yours may be rejected. Faith is required precisely because of the fact that constitutional evil and constitutional tragedy are always possible. Faith in progress is what you need because there is no one-way ratchet, because there is no escalator ride, because your vision of progress may not only fail miserably but be actively condemned by future generations; but, even so, you need a reason to keep going. » And again: « rights are not secure, and don't stay constant over time. Things move in and out of the canon; politics modifies and undermines existing understandings. Things move from off-the-wall to on-the-wall and sometimes back again. »
A "modernist attitude" seems a very weak peg on which to hang faith in progress. More plausible is that we need faith in progress as « a reason to keep going ». Except that we, or at least some of us, don't.
1. WHY FAITH?: I will be dead before 2080.
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