J. Balkin on Heller

Following up on the point made by his colleague Sanford Levinson, Balkin (author of combination originalist and living constitutionalism) sees the living constitutional permeating Scalia’s majority opinion.

Despite its long and occasionally dreary originalist exegesis, the Heller majority is not really defending the values of 1791. It is enforcing the values of 2008. This is no accident. Indeed, the result in Heller would have been impossible without the success of the conservative movement and the work of the NRA and other social movement actors who, over a period of about 35 years, succeeded in changing Americans’ minds about the meaning of the Second Amendment, and made what were previously off-the-wall arguments about the Constitution socially and politically respectable to political elites. This is living constitutionalism in action.

Like Lawrence v. Texas, Heller is another example of how the Supreme Court exercises judicial review in response to successful social and political mobilizations, regardless of what individual Justices understand themselves to be doing. The only difference is that in Heller, it is conservatives who have successfully changed public opinion, a change that has now become reflected in Supreme Court opinions.

Read the whole thing.

Final result:

No matter how much the arguments in Boumediene and Heller are dressed up in originalist garb, they show us that that living constitutionalism is alive and well. In each case the Supreme Court revises existing law to match changes in public opinion.

For Balkin’s very deft and penetrating analysis of the relationship between the Court, political movements, and the ballot box, here.

Published in: on June 27, 2008 at 4:41 pm  Comments (1)  
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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.

Why George Washington was an Unconstitutional president


Great semi-parody/reality piece by Jack Balkin that shows some of the inherent difficulties with originalist jurisprudence.

The piece references that McCain was (may have been?) born in the Panama Canal and therefore it is unclear (to some?) that he is not a natural born citizen hence ineligible for the presidency.


I have to tell you, frankly, that whether McCain is “natural born” is the least of our worries. If you are truly an originalist, as I am, nobody is eligible to be president today.

The Constitutional line in question reads:

“No person except a natural born Citizen, or a Citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President.”

Now back to Balkin: (more…)

Published in: on March 11, 2008 at 9:57 am  Leave a Comment  
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The Informational State

Listen to Jack Balkin’s profound talk on the national surveillance state (video here–halfway down page).  As close to required watching as I have seen.

For Balkin, the national surveillance state, the next iteration in government, from and building on the welfare state and the national security state, is itself only one facet of a much greater tectonic paradigm shift (in the true sense of that word): the informational state.

JB argues that government has previously been built around the concept of adjudicating the law and punishing criminals after a crime has been committed. The information society (Minority Report?) will be built around the collection and vetting of information in order to prevent crime before it occurs.

Controlling information flows.

A key point Balkin argues is that how a state deals with outside players (foreign policy) is directly related to its internal dealings (domestic) and vice versa. The national security appartus comes on the scene roughly at the same time as the Welfare State.

The National Surveillance State arises during the GWOT. Or the post Cold War American unilateral moment.

1.Increased data analysis/surveiling to identify problems of governance
2.Increse’d investment in those technologies
3.New bureaucracies of surveilling,
4.new private-public interface in surveillance

And holonically, Balkin says that the surveillance state will be layered (enveloping) on the welfare and nat’l security state.

It builds on the technology that arose out of those government paradigms.  (e.g. the Internet comes from Darpa, from the Defense Department).

Once the technology arrives on the scene, the technology while not all-determinative, does set the pace and context for the discussion of rights/laws.  RFID tags originally were designed to be implanted on clothing to prevent shop lifting.  But now are used to track people outside of the store.  Or to get a sense of consumer patterns, etc.

This accords with Wilber’s argument in vol.2 that the lower right quadrant (technology) is the greatest single factor in the average mode of consciousness.  The right-hand quadrants, based more out of cognition (fastest moving line of development) evolves much more quickly than the governmental policies and cultural norms (left hand) that set the ethical standards for the use and misuse of such technology.

And make no mistake, the National Surveillance State is already here.  It is not an evil creation of Dick Cheney and George W. Bush however much I think it is right to say they have abused these technologies (technologies without rule sets=abuse of power).   The features of the NSS pre-exist 9/11 (including some laws under Bill Clinton).  Just like Welfare State and National Security State–both designed/implemented by both political parties.  Nixon created the EPA.  Truman the National Security State.

The question is a democratic-transparent informational state or a authoritarian, oppressive one.  The analogy Balkin uses is that the totalitarian informational state is a simultaneous glutton and hoarder of info.  Glutton in that it gobbles up any data it can.  Hoarder in that it keeps everything, disposing of nothing.  Therefore it gets tons and tons of bad information and therefore is paranoid and consequently makes innumerable self-destructive choices based on “faulty intelligence.”  It is miserly in preventing knowledge of its processes, reach, methods of collection, and informational storage locations.

The obverse is an informational gourmet and philanthropist (lean healthy eater and largess dispenser):  eating the proper amounts of information, jettisoning no longer useful or extraneous information as soon as possible.

Balkin theorizes as to whether this shift to a “preventive” model requires or will (darkly) create a parallel legal system–as we see in the current military detainees/torture issue.  Either the parallel system will route around, as Balkin says, the current one (i.e. Abu Ghraib) or it will modify the current system to fit the needs of the new system (new FISA Amendment?).

All of us give off information. All the time.  There is nothing that we will be able to do to prevent giving off information–DNA, bodily information, etc.

The National Surveillance State is a more or less permanent status of American governance, he says.

Published in: on November 28, 2007 at 10:44 pm  Leave a Comment  
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