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Our Two Constitutions

By Jack M. Balkin

I received in the mail yesterday a new book published by the American Constitution Society, which I strongly support and urge everyone to join. The book is "It Is a Constitution We Are Expounding," subtitled "Collected Writings on Interpreting Our Founding Document." It includes, among other things, contributions by Jack Balkin and by my colleague Mitchell Berman. It is certainly well worth reading. Why, though, am I left ambivalent about the book--and the general thrust of the ACS? No surprise: It is because of the view that "interpretation" is the answer to our dilemmas.

Indeed, one of the backjacket blurbs, by former Stanford Dean Kathleen Sullivan, captures the spirit (and, from my perspective, the problem): She describes the book as "a treasure trove for those who love the Constitution and believe that its greatest strength is that it was written in broad and majestic generalities intended to be adapted over time to the needs of future generations. Through such adaptation, the Constitution has endured for 220 years as the bedrock of the freest nation the world has ever known--while being amended only 27 times." She's talking about one aspect of our Constitution, but, just as surely, she ignores another, what I now believe at least equally (and, if truth be known, more) important aspect.

Put to one side that the Constitution has not "endured for 220 years," unless one recognizes, as Joyce Appleby once put it, that it was "in the shop" over a decade in the 1860s, not least because the bad brakes and slick tires built into the original 1787 Constitution in fact helped drive us over a cliff, as Mark Graber has demonstrated in his magnificent book on Dred Scott. The more important problem is that the Constitution does most certainly does not consist only of "majestic generalities." The "majestic generality" Constitution is only one of our two Constitutions. I have no problem with the Equal Protection Clause, the Due Process Clause, or the other such "open-textured" parts of the Constitution. Rather, it is the other Constitution that the ACS, alas, continues to prefer to ignore, the parts--I won't bother rehearsing all of them once more--that are not really subject to "adaptation" in order to achieve a better society. It is so much more fun to "expound" on the "adaptable" Constitution and simply pretend that the "hard-wired" one can always be "worked around." But what if it can't? What if there is a gorilla (or rattlesnake) in the room?

Full post as published by Balkinization on June 09, 2009 (boomark / email).