Reconstruction and Resistance

Abstract

This review essay considers Jack Balkin’s two recent books, Living Originalism and Constitutional Redemption. It argues that Balkin’s theoretical contribution is substantial. His reconciliation of originalism and living constitutionalism is correct and should mark a real advance in constitutional theory and scholarship. Political considerations may, however, complicate its reception. Something like political considerations seem also to have complicated Balkin’s theory. He suggests that we may think of American constitutional history as an attempt to redeem the promises of the Declaration of Independence. I argue that the Reconstruction Amendments are a much more appropriate focus for redemption and speculate that Balkin chooses the Declaration instead because it has a universal appeal that the Reconstruction Amendments do not. But by making his theory consistent with our national mythology of a successful constitutional experiment — a mythology that slights the Civil War and Reconstriction — Balkin actually accedes to a political program he probably does not endorse.