Agreements with Hell and Other Objects of Our Faith
Agreements with Hell and Other Objects of Our Faith
J. M. Balkin 0
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Cover Page Footnote
Lafayette S. Foster Professor, Yale Law School. I am grateful to Bruce Ackerrman, Akhil Amar, Sotirios
Barber, Chris Eisgruber, Bob Gordon, Mark Graber, Michael Klarman, Sanford Levinson, Catharine
MacKinnon, Dorothy Roberts, Reva Siegel, and William Treanor for their comments.
This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol65/iss4/26
AGREEMENTS WITH HELL AND
OBJECTS OF OUR FAITH
VOU
INTRODUCTION
might think that at a conference devoted to constitutional
Xfidelity, the first question to address is whether the Constitution
deserves our fidelity. Therefore, there is some irony in the fact that
the question is raised in a panel at the very end as we are all getting
ready to go home.
Yet I think that this placement is symbolically appropriate. Fidelity
to the Constitution is something that most constitutional
lawyersand indeed most citizens-take for granted as an important political
value. Of course one wants to be faithful to the Constitution. What
judge, lawyer or law professor wants to be thought of as unfaithful to
the Constitution? Who wants to be known as a constitutional
adulterer? It reminds me of Jordan Steiker's comment when a student
asked him whether he believed in a living Constitution: "Yeah, like
I'm going to be in favor of a dead one!"'
I was tempted, in fact, to entitle this Article "In Praise of
Constitutional Adultery." But that is not my real goal. I am not here to bury
constitutional fidelity, much less to praise it. As I shall argue in more
detail momentarily, it's not really possible to be against fidelity if one
is seriously interested in interpreting the U.S. Constitution. Fidelity is
the whole point of the enterprise. What we can ask ourselves is what
this enterprise does to us. Fidelity, I shall argue, is not simply a
property of an interpretation. Fidelity is a feature of a self who disciplines
herself to think and argue in a certain way. Fidelity is the result of
entering into a particular practice of language and thought and
allowing one's self to be shaped by this practice. Fidelity is an
interpretive attitude that produces psychological pressures on us and affects us
for good or for ill.
If we think of fidelity as a property of a good interpretation, there
can be no question whether fidelity is a good thing or a bad thing.
Only when we understand fidelity in psychological and sociological
terms-only when we see it as a practice of socialization and a
discipline of thought that does something to us and to our society---can we
ask the question whether the Constitution deserves our fidelity.
* Lafayette S.Foster Professor, Yale Law School. I am grateful to Bruce
Ackerman, Akhil Amar, Sotirios Barber, Chris Eisgruber, Bob Gordon, Mark Graber,
Michael Klarman, Sanford Levinson, Catharine MacKinnon, Dorothy Roberts, Reva
Siegel and William Treanor for their comments.
1. Quip on file in the author's memory.
The practice of constitutional fidelity creates social and
psychological pressures on us because the Constitution exists in a political system
that is certainly not completely just and may in fact be very unjust.
Recognizing that the Constitution we are faithful to might be an evil
Constitution would create enormous cognitive dissonance, because we
face enormous pressures for fealty to the Constitution both as a
national symbol and as the basis of our legal system.
The social and psychological pressures that arise from the practice
of fidelity create three basic kinds of ideological effects. The first is
that we will tend to see the Constitution as standing for whatever we
believe is just, whether it does or not, and whether it ever will be so.
In this way the "true" Constitution can be separated from any evils of
the existing political system. This is a matter of conforming the
Constitution to our ideas of justice, and so we might call it interpretive
conformation.
The second possible effect is that we will accept what we think the
Constitution requires as being just, or at least not too unjust. In this
case we conform our beliefs about justice to our sense of what the
Constitution means, and not the other way around. We might call this
interpretive cooptation. It allows us to pledge faith to the
Constitution because we decide that things are not really so bad after all.
Finally, the practice of constitutional fidelity can affect us in a third
way. Immersing ourselves in this practice makes it seem natural for us
to talk and think about justice in (...truncated)