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Balkin Constitutional Redemption

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.

Originally Posted at Concurring Opinions

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the Privacy + Security Forum and International Privacy + Security Forum, annual events designed for seasoned professionals.

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