Redemptive Constitutionalism

My favorite legal theorist is Jack Balkin (Balkinization fame). I’ve been reading and re-reading these two essays of his Abortion and Original Meaning and Original Meaning and Constitutional Redemption.

To put an overly generalized categorical framework, legal theory is dominated by the fight between so-called originalists (e.g. SCOTUS Justices Scalia and Thomas) and Living Constitutionalists (SCOTUS Ginsberg and Breyer).

What Balkin describes in these essays is a way forward–a synthesis that shows how originalism and living constitutionalism are compatible.

The way this takes place is through making a distinction between original meaning of the Constitution and original intended application. Balkin’s originalism involves the former but is open to change the latter (as opposed to Thomas and Scalia who tend to conflate the two).

Balkin calls this text and principle. The original meaning of the text–i.e. what the text was publicly understood to mean at the time of drafting and implementation (as opposed to the original intentions of the founders) holds principles that are binding. However the method by which those principles are to be interpreted and executed and legislated in our day is not bound by the original intended understanding and practice of their application.

Principle then functions like context: text and context. Scalia and Thomas’ original intended application (which is contextual not textual) is itself quite non-original to the Framers mindset and has no explicit textual grounds to recommend itself as a method.

From the abstract to the second article:

A successful constitution like America’s must simultaneously serve three functions: It must be basic law a framework for governance that allocates powers and responsibilities. It must be higher law a source of aspiration and a reflection of values that stand above ordinary law and hold it to account. And it must be our law an object of attachment that we see as the product of our collective efforts as a people. Viewing the Constitution as our law involves a collective identification with those who came before us and those who will come after us. The Constitution as our law constitutes us as a people that extends over time. This collective identification is a constitutional story that allows us to regard the Constitution as our own even if we never officially consented to it.

I find this notion of a redemptive constitutionalism very intriguing and am thinking of ways to apply it back in theological thought.

The same move towards retention of original principles but not original intended application is at work in readings of the Bible that stress principles and values that the Church must stand by (as standing under its Revelatory and Redemptive Constitution) and yet not be bound by the original intended application of those documents, particularly in ethical and disciplinary matters (e.g. gays and lesbians). The original intended application of the Bible is clearly exclusionary of such groups, just as the Constitutional order originally intended an application of slavery, second/third class status to women and non-property owning males.

Balkin also has a subtle understanding of the relationship between political movements, the Constitution, the Supreme Court, and elections.  This process applies both to conservative political and judicial movements as well as liberal (so-called in both groupings), rather than the oft-used conservative ploy of not being a political-judicial activist movement but “originalism”.

This frame also applies I think in church life and swings in power between different factions/groups within the church, theologically, morally, and politically.  And here too the issue is not much that this is how it is, how it goes, as it is those who (as of now usually though not exclusively conservatives) who will not either publicly admit to (or have deluded themselves into thinking otherwise) that they are no in fact mobilizing and doing what they are doing.

I’ll be returning to some of these themes in later posts, trying to relate them more and more to hermeneutics and Biblical thinking.


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