The Politics of Constitutional Fidelity
Mariah Zeisberg | 2012 U. Ill. L. Rev. 801
In this Article, the author praises Jack Balkin’s new book, Living Originalism, for advancing normative constitutional theory in two interlocked ways: (1) by demonstrating that many long-thought conclusions central to originalist ideology are simply not required by the original meaning of the Constitution’s text, and (2) by explaining constitutional authority and fidelity in a manner consistent with a systems-level understanding of the judicial role. The author links these advancements by noting that insofar as the major constitutional controversies of the day are disputes over constitutional construction and not of constitutional interpretation, attention is naturally directed to the political systems that elaborate new constitutional constructions.
Yet in the author’s view, the book inadequately develops standards for assessing those politics. Balkin’s criterion of democratic legitimacy is simply too capacious. The author supplements Balkin’s work with her own work on “processualism,” which attends to the role institutions play in conferring normative legitimacy. Because processualist values are enforced by partisan officials, however, using processualism as a standard of fidelity will require theorists to adopt positions that register as partisan even while assessing systems-level processes. Making use of processualism’s analytic leverage would require Balkin to give up the aspiration toward a nonpartisan systems-level approach to constitutional fidelity.