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Living Originalism and Constitutional Redemption — Two New Books by Professor Jack Balkin

Jack Balkin
Living Originalism
Constitutional Redemption: Political Faith in an Unjust World
Harvard University Press, 2011

Jack Balkin, Knight Professor of Constitutional Law and the First Amendment, published two books this year, one on constitutional interpretation and one on the Constitution’s role in American politics and life.

In Living Originalism, out in November 2011, Balkin argues that the best versions of originalism and living constitutionalism are compatible rather than opposed. He offers a constitutional theory that demonstrates why modern conceptions of civil rights and civil liberties, and the modern state’s protection of national security, health, safety, and the environment, are fully consistent with the Constitution’s original meaning. And he shows how both liberals and conservatives, working through political parties and social movements, play important roles in the ongoing project of constitutional construction.

By making firm rules but also deliberately incorporating flexible standards and abstract principles, the Constitution’s authors constructed a framework for politics on which later generations could build. Americans have taken up this task, producing institutions and doctrines that flesh out the Constitution’s text and principles. Balkin’s analysis offers a deepened understanding of the Constitution that is at once originalist and living constitutionalist, and a vision that allows all Americans to reclaim the Constitution as their own.

In Constitutional Redemption: Political Faith in an Unjust World, released in May 2011, Balkin argues that the Constitution's legitimacy depends on Americans’ enduring belief that, despite its current failings, the constitutional system can be made “a more perfect union.”

The American constitutional project, Balkin argues, is based in faith, hope, and a narrative of shared redemption. Because Americans have believed in a story of constitutional redemption, we have assumed the right to decide for ourselves what the Constitution means, and have worked to persuade others to set it on the right path. As a result, constitutional principles have often shifted dramatically over time.

For people who think that the American political system is perfectly fine just as it is, constitutional faith is not necessary. But when, as often happens, we find that we are constitutional dissenters or that the political system seems broken, belief in the legitimacy of the Constitution requires a leap of faith—a gamble on the ultimate vindication of a political project that has already survived many follies and near-catastrophes, and whose destiny is still over the horizon.