Bernick on Constitutions of Fire and Ice @EvanFloof @jackbalkin @PennLRev @NIU_Law

Evan D. Bernick, Northern Illinois University College of Law, is publishing Constitutions of Ice and Fire in the Pennsylvania Law Review. Here is the abstract.

Constitutional theory studies the birth and death of normative universes. Constitutions originate in “hot” universes, from fiery constituent power which forges institutions and norms that come to be seen as fixed and unchanging. Even in the “cooled down” universe, constituent heat is capable of transfiguring, transforming, and even consuming constituted power. No constitution which derives its legitimacy from popular sovereignty can long survive the estrangement of the living from what is perceived as a cold, dead legal order. Jack Balkin’s Memory and Authority tries to navigate between fire and ice, fixity and flux. Since Balkin’s conversion to originalism, he has been a steadfast defender of faith in the basic legitimacy of the Constitution of the United States and a keen critic of interpretive approaches which tend to undermine its legitimacy. His Constitution is a framework which has some fixed, “hard-wired” features but which also provides considerable space for politics. Popular multitudes in the present can join multitudes past in an intergenerational democratic project committed to the realization of enduring constitutional principles. Through faithful construction, an imperfect Constitution borne of sin can be redeemed and become our law. Memory and Authority maintains that originalist arguments play an important role in this democratic project. Balkin considers them to be a particularly effective means of harnessing the power of cultural memory. Balkin counsels everyone to use them. He specifically urges left-liberals to set aside their misgivings about a mode of argument that is primarily deployed by political conservatives, both for the sake of achieving left-liberal political goals and for the sake of democracy. I contend that Balkin’s map of the U.S. constitutional universe is neither cold nor hot enough to be complete or convincing. It’s not cold enough because the framework Constitution and durable political-economic structures which it presupposes and perpetuates skew constitutional decisionmaking in democratically disempowering ways. It’s not hot enough because Balkin neglects the ways in which the framework has been shaped—for good and ill—by fiery constitutional faiths. For all the space that he seems to leave for flux, Balkin takes too much fixity for granted. To illuminate the strengths and limitations of Balkin’s constitutional theory, I put his work in conversation with the anti-essentialist cosmological theory of Roberto Mangabeira Unger, among the founders of a critical legal studies movement to which Balkin was in his early career a major contributor. I also describe the constitutionalism through which Native peoples have built power in the United States, notwithstanding a colonialist Constitution. This constitutionalism is animated by faith, but that faith looks little like Balkin’s. And it illustrates why arguing about history can be a dangerous strategy for peoples marginalized by the framework Constitution.

Download the review from SSRN at the link.