Constitutional Redemption: Political Faith in an Unjust World.

AuthorNeJaime, Douglas
PositionBook review

CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD. By Jack M. Balkin. Cambridge: Harvard University Press. 2011. Pp. 298. $35.

INTRODUCTION

In Constitutional Redemption: Political Faith in an Unjust World, Professor Jack Balkin (1) furnishes a positive account of constitutional change, advances a normative vision of the relationship between popular mobilizations and evolving constitutional principles, and develops an interpretive theory aimed at fulfilling the Constitution's promise. Rather than take an internal perspective that asks how courts alter constitutional doctrine, Balkin decenters adjudication and instead views the role of courts in constitutional change through the lens of social movements. In doing so, he convincingly exposes the feedback loop between social movements and courts: courts respond to claims and visions crafted by movements, and court decisions in turn shape the claims and visions of those movements and alter the political terrain on which those movements operate. By placing social movements, rather than courts, at the center of his analysis, Balkin ultimately redeems courts, demonstrating their lively, legitimate, and contingent role in the process of constitutional and social change. In doing so, he challenges influential constitutional scholarship that takes a generally pessimistic view of courts.

Even though social movements are at the core of Balkin's analysis in Constitutional Redemption, he does not explicitly borrow from the extensive social movement literature in sociology and related disciplines. Social movement scholars analyze the development and operation of movements, including the ways in which movements mobilize constituents and persuade others to support their objectives. (2) As one social movement scholar explains, the field aims "to produce general knowledge on how, in what forms, and under what conditions social movements become a force for social and political change." (3) Understood in this light, social movement theory and Balkin's brand of constitutional scholarship both aim to unpack the processes of change and to explain how social movements contribute to and shape that change.

Legal scholars have increasingly focused on the role of social movements to understand both the way in which constitutional meaning is constructed and the role of courts in that process of construction. (4) This scholarship has persuasively demonstrated how the labor, civil rights, and women's movements, just to name a few, have shaped constitutional norms and in turn have been shaped by those norms. (5) Yet this body of work has largely located social movements within the process of constitutional change without drawing directly on the theoretical frameworks that have dominated the study of movements in the social sciences. (6) In this sense, Balkin's work is part of an influential body of legal scholarship that convincingly demonstrates the impact of social movements on constitutional culture, yet does so without explicitly incorporating social movement theory.

Given the recent turn by constitutional scholars toward social movements, the time seems especially ripe to reframe constitutional analysis around theoretical concepts and empirical insights drawn from social movement scholarship. (7) In this Review, I argue that reliance on social movement theory could contribute to a more nuanced account of constitutional change by contextualizing courts within broader patterns of conflictual relations and locating courts as crucial sites for mobilization, contestation, and adjudication. Through greater interdisciplinary dialogue, legal scholars could better assess both the possibilities and the limitations of law and courts for contributing to social change. To show this, I connect Balkin's account of constitutional change to the three major theoretical frameworks in social movement theory: (1) framing, (2) resource mobilization, and (3) political process. These frameworks complement Balkin's account of constitutional change at the same time that they push constitutional scholars to tease out and specify the constraints imposed by court-based tactics.

Part I of this Review describes Balkin's remarkable contribution in Constitutional Redemption along three dimensions: his positive account, its normative implications, and his interpretive theory. In doing so, the discussion focuses on how Balkin locates courts and social movements within the process of constitutional change.

Part II delves into some of the most influential recent constitutional scholarship, which takes a generally pessimistic view of courts. Prominent legal scholars have articulated jurisprudential, institutional, and partisan critiques of courts--specifically of adjudication. These critiques animate models of legislative and popular constitutionalism that explicitly turn away from courts and advocate constitutional construction as an extrajudicial process.

Balkin rarely engages these critiques of courts in an explicit way, and his model of constitutional change makes ample room for--and, in fact, embraces-processes of legislative and popular constitutionalism. Yet by decentering courts in his analysis and instead looking to social movement contestation happening both in and out of court, Balkin advises us to be skeptical of the claims animating the turn away from courts. By constructing a more grounded and context-specific analysis of how social movements seize on constitutional principles and deploy court-based tactics, Balkin pushes constitutional scholars to develop a more bottom-up, decentered account of law and courts. In doing so, he encourages constitutional scholars to elaborate positive accounts and normative theories of constitutional change that identify courts as active and productive participants in political and constitutional conflict. Ultimately, Balkin's model of constitutional construction is one in which legislative and popular constitutionalism operate in conjunction with, rather than in the absence of or in opposition to, courtbased change.

Even though Balkin's intervention creates a compelling case for more direct engagement between legal scholarship and social movement theory, Constitutional Redemption does not draw explicitly on insights from social movement work in sociology. In Part III, I argue that direct appeals to social movement theory could produce a more contextualized and dynamic understanding of courts and constitutional change and, ultimately, both support and hone Balkin's analysis. To that end, l suggest what a research agenda at the intersection of constitutional scholarship and social movement theory might look like. Such an agenda would incorporate the optimistic insights drawn from Balkin's work into an account of where and how courts function in the process of social change, and would endeavor to better understand the limitations of law and court-based tactics. In the end, the use of social movement theory in constitutional scholarship could help legal scholars develop a more nuanced, contingent, and robust model of the impact of law and courts on social change.

  1. CONSTITUTIONAL REDEMPTION

    In Constitutional Redemption, Balkin offers an account of constitutional change that ties mobilization around the Constitution's text to changing constitutional (and cultural) norms both inside and outside the courts. First, he offers a positive account of how constitutional change occurs in the United States. Next, he endorses the normative dimensions of that account, embracing a process of change in which political and social mobilizations shape constitutional construction, and courts respond to claims constructed in the context of broader political and cultural struggles. Finally, Balkin sets out his interpretive theory of "framework originalism," in which the method of "text and principle" allows successive generations to interpret and contest constitutional commitments and ultimately make some of those interpretations part of our positive law. This Part describes Balkin's contribution in Constitutional Redemption along these three dimensions but does so by focusing on Balkin's attention to the relationship among the Constitution, social movements, and courts.

    1. A Positive Account

      The Constitution itself plays a central role in Balkin's story of redemption. (8) The Constitution serves as "basic law" (setting the framework of governance), "higher law" (articulating the values to which the country aspires), and "our law" (connecting Americans to a common project) (p. 239). Thus, the Constitution, at least partly, sets the terms of debate both inside and outside the courts, furnishes ideals that Americans invoke in political and moral conflict, and provides the glue that binds us together. We work collectively to redeem our Constitution--making it live up to the values that we believe it represents (p. 10). All of us, then, have a stake in the constitutional project, and many of us participate in the process of constitutional construction.

      In this sense, the judiciary is merely one of many players shaping constitutional meaning over time. Here, Balkin relies on Professor Sanford Levinson's concept of constitutional Protestantism (9)--"the idea that no institution of government, and especially not the Supreme Court, has a monopoly on the meaning of the Constitution" (p. 10). Individuals may "refuse to defer to judges" and instead "assert a wide range of different meanings about the Constitution. (10) Accordingly, our constitutional culture is populated by multiple, competing, and inconsistent constitutional visions.

      Individuals often make claims on the Constitution by organizing into social movements that construct, develop, and disseminate constitutional visions. These social movements are vital participants in our protestant constitutional culture (p. 71). If successful, these movements influence public opinion in their favor, changing the culture with which...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT