U.S. Constitution, Sanford Levinson, J.M. Balkin, Positive constitution, Normative constitution, Progressive constitution, Progressive constitutionalism
Constitutional Law | Legal History
In the closing pages of Constitutional Faith Sanford Levinson asks himself whether he would have signed the Constitution in Philadelphia, warts and all. He concludes that he would have joined the signers primarily because of a progressive faith that the evils of the Constitution would erode with time. So too, Levinson's frequent co-author J.M. Balkin, asks in the midst of a symposium on fidelity in constitutional theory, whether the present Constitution deserves our fidelity. Balkin does not deny the presence of sanctioned evil under our Constitution. He suggests, for example, that the Constitution fails to protect the poor. In so doing, he argues that the Constitution is not consistent with what the best political theory would demand. It is also burdened by the claims of history and tradition. Fidelity to the Constitution on this reading is fidelity to substantial evil. Moreover, Balkin recites costs that are attached to fidelity including a loss of creativity and the legitimizing of what does not deserve to be legitimized. Nonetheless, in a sudden burst of patriotism at the end of his article, Balkin declares his reverence for the Constitution. He joins Levinson in a declaration of Constitutional Faith.
Of course, Balkin and Levinson are not alone in their support for the Constitution. The Constitution is often heralded as a work of genius. To ask whether it deserves our support would be regarded in some circles as subversive. However subversive it may be, I also question whether the Constitution deserves fidelity. Before the dust clears, I will argue, as Sandy Levinson has before me, that the question whether progressives should support the Constitution or whether the Constitution deserves fidelity raises many different issues. Unlike Levinson, I believe the questions deserve different answers in different contexts.
Shiffrin, Steven H., "Should Progressives Support the Constitution?" (1999). Cornell Law Faculty Publications. Paper 1282.
Published in: Widener Law Symposium Journal, vol. 4 (Spring 1999).