Agreements with Hell and Other Objects of Our Faith

Fordham Law Review, Dec 1997

By J. M. Balkin, Published on 01/01/97

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Agreements with Hell and Other Objects of Our Faith

Agreements with Hell and Other Objects of Our Faith J. M. Balkin 0 Recommended Citation 0 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information , please contact Follow this and additional works at; https; //ir; lawnet; fordham; edu/flr - 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)


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J. M. Balkin. Agreements with Hell and Other Objects of Our Faith, Fordham Law Review, 1997, Volume 65, Issue 4,