On Balkin's Constitutional Redemption
Balkin is acting as an advocate, as lawyers do. He’s engaged in an argument with Posner, Vermeule and their ilk. But his logic or his faith force him to fudge his history to defend his vision of democracy, which allows Vermeule to counter as a hardened realist and blablabla [blablabla-Vermeule reviews Balkin]. I find myself more and more envious of Canada and the living tree doctrine, which renders all this irrelevant.
Our relation to the Constitution is like our relation to Don Giovanni. And every time Peter Sellars has a new production set in Trump Tower or Las Vegas, we set about arguing whether he made the thing fresh or somehow screwed it up. The only difference between the two debates is I suppose the matters of life and death, or justice and tyranny: the baggage of politics. I love baggage; thinking about baggage takes up a good part of my life. But treating politics as baggage, as vulgar, has its advantages. I see no need to waft about in discussions of faith and redemption; fascism is fascism, why pussyfoot around it? Posner and Vermeule defend what lovers of democracy abhor, what else is there to say? They claim to find support for this in the Constitution but Christian kings found support for the Crusades in the Bible. They claim to defend reason. My response is simple. I’ve said it before and I’ll repeat it: “That authoritarianism has become normative may be a scientific fact, but that does not make authoritarianism itself a scientific truth.”
Balkin is arguing from the past and about the future, but somehow the present is lacking.
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