8 of 8 people found the following review helpful
on August 7, 2011
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. I don't have any assurance that efforts I make today to fight for Constitutional principles in which I believe will have any lingering impact in my own lifetime, much less after I'm gone. Consistent with what JB tells me, there is certainly a chance that the Constitutional system of 2080 could look like the system in 1940. E.g., who's to say some Court in the future won't think that a "penumbra" is as bogus as "tripartite citizenship" (the now-suppressed philosophical underpinning of "separate but equal") and throw out the right to privacy -- perhaps persuaded by an amicus brief from the Google Professor of Law at some ivied institution?
Now, it's very possible that people in 2080 will be happier with their 1940-style CIP than we are with our 2011-style CIP today. In the first version of this review, I'd thought that this might be a sort of progress to which JB was referring. I could admit that as a sort of progress -- even though I don't at all see why should that be inspiring to me today, if I have no idea of what the content of the 2080 CIP will be.
But from his emails, I gather that this isn't what JB meant. I think he means that we should have faith in progress that *our view today* of what the Constitution should be (i.e., the view each of us holds today, which may differ from our neighbor's), will prevail in the future. As he wrote to me « I have faith that the American people, working together, can make this a more perfect Union, through constitutional constructions, and through the amendments process. That is my constitutional faith. But it is not a guarantee. It may not happen. »
I'm sorry, given all the perils and risks that JB points out, I don't see any justification for **faith** that my views will prevail in 2080 or sooner or later, even though I may *hope* that they do, and may strive toward realizing that hope. Nor do I see a *need* for faith: my hopes -- and my fears about the alternative -- may be sufficient to keep me going.
2. WHY PROGRESS?: At one point (@80-82) JB debates himself as to whether "the Constitution [is] a comedy or a tragedy." Certainly this analogy to literary narratives can be relevant to legal cases, contractual deals, political struggles, political argument, and the like. But that's the view from the sort of Flatland in which we live our daily life. From the viewpoint of a 4-dimensional observer, the dichotomy of comedy and tragedy, and the teleology of the "redemption" arc, improperly exclude a middle: the simple evolution of a legal system, and of a polity, in time.
Evolution doesn't necessarily entail progress. Is it progress that humans have lost the tails of their ancestors? Or that they've lost their gills? It's been OK so far, but no one knows about the future. Our descendants might regret the loss, or even grow them back. (Indeed, if evolution can mean turning back the clock on school prayer cases and other Establishment Clause jurisprudence, it might suddenly become popular among some of its customary antagonists.)
Let's go back to those happy yahoos living in 2080, satisfied with their retro CIP. Most likely their satisfaction will be short-lived, as new controversies and new injustices arise, and practice and aspiration slip out of phase with each other. Their fleetingly "more perfect Union" may fall to heck in a flash. And ditto for, say, a more politically liberal m.p.U. that may succeed it a generation or two later. Most of the future may involve our oscillating back and forth on many issues, as different groups with different aspirational visions of the Constitution and of society contend politically. ("Oscillating" is imprecise: I don't mean like a sine wave, but rather a continual to-ing and fro-ing, or even a random walk, that in the short term has some displacement to the "left", "right, etc., but in the long term averages out to a net insignificant displacement.)
Nothing in what JB says rules out this idea of oscillation; rather, his caveats encourage this point of view. Suppose we imagine this going on within, say an XY coordinate system (I choose 2 dimensions for simplicity, not accuracy). I guess one could take "redemption" to mean returning to (0,0) from someplace that you didn't want to be, e.g. too far on the left (-X) -- though that's hardly an inspiring vision of "redemption". Of course, "redemption" can also include wandering from the left side deeper into the +X side of the graph (assuming that's your preference). But if you're going to get pulled back to zero, and maybe into the -X part, the metaphors of "progress" and "redemption" don't seem so apt.
Notwithstanding JB's emphatic rejection of the "Great Progressive Narrative" (i.e.,the notion that America "has been getting better and better, more just and more free," @3), his metaphors suggest he still clings to it at some level. Ordinary connotations of "progress" and "redemption," "comedy" and "tragedy" include some sort of durability and resolution (e.g., an enduring net displacement in some direction, for "progress"), or even finality and closure (happy ending, etc.). They suggest that if you want to be in, say, the +X side of the graph, eventually *you will stay there*. The word "redemption," which JB uses with an intentionally religious connotation (not the detergent coupon one), conjures up what my American Heritage Dictionary defines as "salvation from sin through Jesus's sacrifice". That doesn't sound too reversible to me.
But there's nothing in JB's argument to support the view that this irreversibility can be achieved. Rather he argues vociferously against it. So either his argument is at war with its metaphors, or it will take a miracle to achieve redemption. The words "miracle" and "miraculous" don't appear in the book. (I think they're covered by a different genre of law anyway.) Maybe the only thing that can save JB's rhetoric from incoherence about progress and redemption is a "modernist attitude". Good luck with that.
There are many other metaphors one might use to suggest the ideals, commitment and continuous effort necessary for constitutional culture, while accommodating oscillation -- metaphors based more on images of, say, maintenance and enjoyment, not progress or "redemption". For example, a marriage requires ideals, commitment and continuous effort, and can be very rewarding, but without any expectation that your spouse is going to eventually approximate your idealized view of him or her when you first met. A garden requires constant tending, weeds need to be pulled, some things die, other things bloom beautifully for a while and may even yield fruit for many years, etc. -- but there isn't any finality. The game of Whack-a-mole reminds us that the price of democracy is eternal vigilance; and for sake of a democratic society, lawyers, civil society and others may feel very committed to whacking 'em when they see 'em.
There may even be a "parable of the plankton" one can base on the so-called paradox of the plankton in marine biology. (You can find a 2003 paper by Marten Scheffer & al. online to explain the scientific issue more fully.) Classical ecological theory predicts that when many plankton species compete for the same nutrients within the same patch of ocean, there should ultimately be an "equilibrium" with one winner; but actually, one finds a continuing diversity of species, and no equilibrium. Could that have some features in common with a healthy democracy? I'm not sure how far the analogy can be pushed, but if I had to put my money on comparing democracy to (a) a natural phenomenon based on many contending communities, versus (b) a Biblical allegory, I think I'd put my money on nature. (Especially because in that allegory, redemption means the Temple is re-built and the priests, not the "protestants," win.)
That's not to say that Americans will find plankton, gardens or moles even remotely as persuasive as a Biblical allegory. Nor is it to ignore that liberals certainly need a better way to get their vision of the aspirational Constitution more widely accepted (assuming public opinion will continue to have some constitutive power in public affairs, as our plutocracy entrenches itself). Instrumentally, Bible stories may win. But at least for me, the redemption story arc runs afoul of "the ethics of storytelling," as JB sets them out (@26-27): i.e., it falls within the at least one of categories of being not true, exaggerating, or leaving out important and relevant details. For that reason, I'm not only not persuaded by JB that I "must" share a redemptive vision of the Constitution, but I think that vision is too manipulative a rhetorical turn to deploy in public debate. (And being told that I "must" approach the Constitution with something akin to religious faith really, really bugs me, period.) There's a lot of good material in this book; if only JB had included a free exercise clause, I might have been able to rate it more highly.