Online
Publications

 

 

 

Jack M. Balkin

 


Knight Professor of Constitutional Law and the First Amendment

Director, The Information Society Project at Yale Law School

 


Balkinization



Opeds and Other Short Writings


Brownvboard.com
Conlaw.net

 

Writings Available Online

 

A. Constitutional Theory
B. First Amendment, Cyberspace and Telecommunications Law
C. Law and Music
D. Deconstruction and Post-Structuralism
E. Legal Semiotics and Legal Theory

 

A. Constitutional Theory

 

"Wrong the Day It Was Decided:" Lochner and Constitutional Historicism, 85 B.U. L. Rev. 677 (2005)

This essay, written for the 100th anniversary of Lochner v. New York, discusses how the meaning of the case has changed in the past twenty years.

 

Plessy, Brown, and Grutter: A Play in Three Acts, 26 Cardozo L. Rev. 1689 (2005)

Although people often think of Brown v. Board of Education as a great transformation in the law, it is actually a halfway point between an older conception of equal citizenship and a newer one. The first conception, the tripartite theory, rationalized the new status of blacks in American society following the Civil War. It divided the rights of citizens into three parts-civil, political and social-and held that equal citizenship meant equality of civil rights. The second conception, the model of scrutiny rules, arises during the middle of the twentieth century. It sees the rights of equal citizenship as a series of protections from state power that are, in turn, divided into fundamental rights and suspect classifications.

The law of equality is also the law of inequality; it declares what constitutes unequal treatment as a matter of law, and what forms and claims of inequality the law will not recognize as presenting real or remediable problems of inequality. That is because principles of equal citizenship are compromises between contending forces in society. The law of equality enforces that compromise and restates it in principled terms, so that what law enforces is not equality per se, but equality in the eyes of the law. The story of Plessy, Brown, and Grutter shows how principles of equal citizenship were adopted at particular moments in the country's history to effect particular compromises that would be palatable to the most powerful groups in society.

 

What Brown Teaches Us About Constitutional Theory (2004)

This essay, written for the 50th anniversary of Brown v. Board of Education, explains the key lessons of Brown for constitutional theory. Ironically, Brown has comparatively little to teach us about which normative constitutional theory is best, because almost every contemporary normative constitutional theory takes the correctness of Brown as a starting point. Rather Brown's key lessons concern positive constitutional theory - the study of how constitutional development and constitutional change occur over time.

Courts, and particularly the U.S. Supreme Court, tend, over time, to reflect the views of national political majorities and national political elites. Constitutional doctrine changes gradually in response to political mobilizations and countermobilizations; minority rights gain constitutional protection as minorities become sufficiently important players in national coalitions and can appeal to the interests, and values, and self-conception of majorities, but minority rights will gain protection only to the extent that they do not interfere too greatly with the developing interests of majorities.

Although Supreme Court decisionmaking tends to reflect these larger institutional influences, it is largely uninfluenced by normative constitutional theories about the proper way to interpret the Constitution. In fact, there is little reason to believe that the product of Supreme Court decisionmaking could regularly correspond to the outcome of any particular normative constitutional theory. This suggests that one important function of normative constitutional theory may not be giving advice to judges but rather offering professional legitimation for the work of the Supreme Court.

 

 

Respect Worthy: Frank Michelman and the Legitimate Constitution (2004)

This essay, written for a symposium in honor of Frank Michelman, explores Michelman's most recent views on constitutional legitimacy. The legitimacy of a constitutional/ governmental system is less than full justice and more than mere legal validity. Legitimacy means that the constitutional/governmental system is sufficiently worthy of respect that members of the political community can accept its power to coerce obedience to law and enjoy the goods of political union.

The Constitution is not legitimate because it is a contract for legitimacy, because it contains a certain fixed substantive content, or because a certain group of people agreed to it long ago. It is legitimate to the extent that the members of the political community, each interpreting its meaning and its content in his or her own way, can reasonably assent to it and give it their respect.

This account of legitimacy, nevertheless, is incomplete in three respects. First, because the constitutional/legal system will change, judgments of legitimacy must be grounded in faith about the future as well as in beliefs about the current content of the constitutional/legal system. Second, for the same reason, judgments of legitimacy require that members of the political community be able to see themselves as part of a political project that extends over time, working toward a goal that is worth striving for even if it is not yet completely achieved. Third, the legitimacy of the system requires that there be some method of feedback - whether formal or informal - through which members of the political community can challenge dominant understandings of the constitutional/legal system that they believe to be mistaken. In terms of the American constitutional system, with its practice of judicial review, there must be formal and informal methods through which dissenting constitutional interpreters can shape, influence, and affect official interpretations of the Constitution. Although some scholars have argued that the legitimacy of the American system depends on the judiciary having the final word on the meaning of the Constitution, in fact the opposite is the case: Constitutional legitimacy ultimately depends on disagreements about constitutional meanings, and a protestant approach to constitutional interpretation.

 

 

The Use that the Future Makes of the Past: John Marshall's Greatness and its Lessons for Today's Supreme Court Justices (2002)

A short essay on how the reputations of Supreme Court Justices are produced over time. Using John Marshall as an example, it argues that the greatness of all Supreme Court Justices is largely a function of their political usefulness to later generations, not whether they conformed to currently fashionable theories of good legal craft and judicial prudence.

 

 

Understanding the Constitutional Revolution (2001)(with Sanford Levinson)

For the past decade the Supreme Court has led a revolution in constitutional doctrine in the areas of federalism, civil rights, religious liberty, and property rights. This article describes the nature of the revolution and the directions it might go. It offers a theory of "partisan entrenchment" through Presidential appointments to the judiciary to explain why constitutional revolutions occur and the sources of their legitimacy. Debates over constitutional revolutions are debates over competing visions of the country which cannot be resolved by ordinary norms of legal craft. Nevertheless, the procedural irregularities of the 2000 Election and of the Supreme Court's decision in Bush v. Gore seriously undermine the legitimacy of the current constitutional revolution. The same five Justice majority that decided the key cases producing the current constitutional revolution used the power of judicial review to install a President who would be most likely to make judicial appointments to further that revolution without sustained support from the American electorate. The decision, therefore, represents an illegitimate attempt by the five Justice majority to secure its own preferred successors. The only practical way to exhibit opposition to the Court's decision, given the majority's self-conscious attempt to limit the doctrinal reach of Bush v. Gore to the specific facts of the 2000 presidential election, is to encourage the Senate to exercise to its powers of "advise and consent" to resist the further entrenchment of judges who will carry out the revolution. Given the structure of the American Constitution, the ultimate fate of the constitutional revolution and of Bush v. Gore will be decided through electoral politics.

 

Legal Historicism and Legal Academics: The Roles of Law Professors in the Wake of Bush v. Gore (2001)(with Sanford Levinson)

The various forms of legal study that examine legal decisionmaking as the product of political, social, and (especially) historical forces is called "legal historicism," and those forms of legal study that examine constitutional decisionmaking as the product of political, social, and historical forces are called "constitutional historicism." There are many different varieties of legal (or constitutional) historicism, but each is premised on two basic assumptions about the legal system. The first assumption is that legal materials and the internal conventions of legal argument are, at any point in time, genuinely constraining on practitioners of legal argument and not infinitely malleable. Nevertheless, at the same point in time, they are sufficiently flexible to allow law to become an important site for political and social struggle. The second assumption is that legal materials and conventions of legal argument are themselves gradually changing in response to the political and social struggles that are waged through them. Therefore the internal norms of good legal argument are always changing; they are being changed by political, social, and historical forces in ways that the internal norms of legal reasoning do not always directly acknowledge or sufficiently recognize.

This essay, written for a conference in honor of Mark Tushnet, discusses the pros and cons of legal historicism. Using the Supreme Court's decision in Bush v. Gore, which decided the 2000 election, we consider whether legal historicism is an appropriate stance for law professors to take.

 

Bush v. Gore and the Boundary Between Law and Politics (2001)

This essay analyzes the arguments in Bush v. Gore and puts the case in jurisprudential and historical perspective. It also discusses the possible consequences for the Supreme Court's legitimacy.

 

Legitimacy and the 2000 Election (2002)

This essay, written shortly after the 9/11 terrorist attacks, discusses the consequences for the legitimacy of the 2000 election.

 

The American Civil Rights Tradition: Anticlassification or Antisubordination? (2003)(with Reva Siegel)

 

The Constitution of Status (1997)

Constitutional equality should not revolve around whether governments have classified people according to immutable traits. Rather, we should look to underlying social realities of status hierarchy and social stratification. The secret to constitutional equality lies not in legal formulae about suspect classifications and levels of judicial scrutiny but through understanding how social structure affects democracy. Democracy, in turn, is about more than majority rule. It demands that we work towards a truly democratic culture. It demands that we work to disestablish unjust forms of status hierarchy. In short, we can only achieve the Constitution's promise of a democratic culture by understanding the constitution of status in our society.

 

The Footnote (1988)

A deconstructive take on American constitutional theory, using as a vehicle the most famous footnote the Supreme Court ever wrote.

 

The Declaration and the Promise of a Democratic Culture (1999)

Why the promises in our Declaration are essential to interpreting our Constitution.

 

Agreements with Hell and Other Objects of Our Faith (1997)

What fidelity means in constitutional law and what fidelity does to the people who pledge faith in the Constitution.

 

The Meaning of Constitutional Tragedy (1998)

What makes a constitutional decision tragic, and the role that We the People play in these tragedies.

 

The Canons of Constitutional Law (1998)(with Sanford Levinson)

This article discusses canons and canonicity in the study of law in general and of constitutional law in particular. It argues that skills, approaches, forms of argument, standard examples, and even stock stories can be just as canonical to a discipline or culture as texts. Canons are formed differently in law and the liberal arts because of differences in institutional context. Because law schools are professional schools, concerns of pedagogy, cultural literacy, and academic theory diverge more in law than they do in the liberal arts. Moreover, because legal canons rely heavily on pronouncements of courts and legislatures, liberal arts scholars have more control over their canon than do legal scholars. Even so, legal scholars have some agency in forming their canon, and the canon of constitutional law needs serious revision. The current study of constitutional law is too much centered on the opinions of the Supreme Court and lacks comparative and historical perspective, encouraging too much specialization and focusing attention away from basic questions about the justice of the legal system. The study of constitutional law should pay attention to structural questions that do not often come before courts, and it should include nonjudicial interpreters of the Constitution, particularly representatives of political and social movements whose interpretations often shape and influence the direction of constitutional interpretation.

 

Constitutional Grammar (1994)(with Sanford Levinson)

This article discusses Philip Bobbitt's theories of constitutional interpretation. While approving of Bobbitt's theory of interpretation according to constitutional modalities like text, intentions, structure, history, and consequences, it argues that Bobbitt's attempt to impose normative conditions on how the grammar of constitutional argument may change is unpersuasive.

 

Constitutional Interpretation and the Problem of History (1988)

This review of a book by Raoul Berger on federalism argues that his strict originalism is untenable. Although Berger believes that originalism is required by the Rule of Law, in fact the Rule of Law-- and in particular, the doctrine of precedent-- inevitably takes constitutional interpretation away from original understandings, because the history of our Constitution is the history of the readings and rereadings, glosses and glosses on glosses of this central and canonical text.

 

Taking Text and Structure Really Seriously: Constitutional Interpretation and The Crisis of Presidential Eligibility (1995)(with Jordan Steiker and Sanford Levinson)

This article pokes fun at some of the currently fashionable practices of constitutional interpretation by arguing that the presidential elligibility clause in Article II strictly construed means that there has been no constitutional president since Zachary Taylor. The article then asks whether it is a parody, and concludes with a discussion of why it might sometimes be difficult to tell constitutional arguments that are serious from ones that are parodies of constitutional argument.

 

The Constitution as a Box of Chocolates (1995)

Written for a symposium asking "What is the Stupidest Provision in the Constitution?"

 

 

B. First Amendment, Cyberspace and Telecommunications Law

 

Digital Speech And Democratic Culture: A Theory of Freedom of Expression for the Information Society (2004)

This essay argues that digital technologies alter the social conditions of speech and therefore should change the focus of free speech theory from a Meiklejohnian or republican concern with protecting democratic process and democratic deliberation to a larger concern with protecting and promoting a democratic culture. A democratic culture is a culture in which individuals have a fair opportunity to participate in the forms of meaning making that constitute them as individuals. Democratic culture is about individual liberty as well as collective self-governance; it concerns each individual's ability to participate in the production and distribution of culture. The essay argues that Meiklejohn and his followers were influenced by the social conditions of speech produced by the rise of mass media in the twentieth century, in which only a relative few could broadcast to large numbers of people. Republican or progressivist theories of free speech also tend to downplay the importance of nonpolitical expression, popular culture, and individual liberty. The limitations of this approach have become increasingly apparent in the age of the Internet.

By changing the social conditions of speech, digital technologies lead to new social conflicts over the ownership and control informational capital. The free speech principle is the battleground over many of these conflicts. For example, media companies have interpreted the free speech principle broadly to combat regulation of digital networks and narrowly in order to protect and expand their intellectual property rights. The digital age greatly expands the possibilities for individual participation in the growth and spread of culture, and thus greatly expands the possibilities for the realization of a truly democratic culture. But the same technologies also produce new methods of control that can limit democratic cultural participation. Therefore, free speech values--interactivity, mass participation, and the ability to modify and transform culture--must be protected through technological design and through administrative and legislative regulation of technology, as well as through the more traditional method of judicial creation and recognition of constitutional rights. Increasingly, freedom of speech will depend on the design of the technological infrastructure that supports the system of free expression and secures widespread democratic participation. Institutional limitations of courts will prevent them from reaching the most important questions about how that infrastructure is designed and implemented.. Safeguarding freedom of speech will increasingly fall to legislatures, administrative agencies, and technologists.

 

How Rights Change: Freedom of Speech in the Digital Age (2004)

This is the text of the 2003 Julius Stone Lecture in Jurisprudence, which gives a different version of the argument. in Digital Speech and Democratic Culture.

 

Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds (2004)

Regulation of virtual worlds has become an important issue in cyberspace law as more and more people spend increasing amounts of their lives in these spaces. This essay discusses the basic questions of freedom and regulation in virtual environments.

There are three kinds of freedom in virtual worlds. The first is the freedom of the players to participate in the virtual world through their in-game representations, or avatars. This is the freedom to play. The second is the freedom of the game designer to plan, construct, and maintain the virtual world. This is the freedom to design. A third is the collective right of the designers and players to build and enhance the game space together. This is the freedom to design together.

These rights overlap in important respects with the constitutional rights of freedom of speech, expression and association. Virtually all activity in virtual worlds must begin as some form of expression, and therefore virtually all forms of legally redressable injury in virtual worlds will be some form of communications tort. However, the law of the First Amendment, as it currently exists, does not adequately protect many important features of the rights to design and play.

Many virtual spaces are rapidly becoming sites of real world and virtual world commerce. In the future game designers will likely attempt to invoke the First Amendment both to protect their artistic integrity and to avoid government regulation. However, to the extent that game designers encourage real-world commodification of virtual items they will not be able to insulate their business practices from regulation. The essay discusses several different models of regulation of virtual worlds, including the model of consumer protection, the virtual world as company town, and virtual worlds as places of public accommodation.

Finally, the essay considers how governments might protect free speech values in privately owned spaces by creating “interration” statutes specifically designed for virtual worlds. These statutes would create a set of templates that allow platform owners to choose what kind of virtual world they wish to create and what corresponding duties they owe to the players. Players, in turn, could choose which virtual worlds they wish to occupy knowing in advance what their free speech rights in those worlds will be. In return for choosing to interrate, governments would shield game owners from liability for communications torts committed by the players.

 

 

Some Realism about Pluralism:
Legal Realist Approaches to the First Amendment (1990)

What the principles of free speech mean in changing times.

 

Populism and Progressivism as Constitutional Categories (1995)

Populism is an underappreciated philosophy of the Constitution. This review essay talks about what populism means for the First Amendment and our attitudes towards popular culture.

 

Media Filters and the V-Chip (1997)

In the Information Age, power rests not with those who have information but with those who filter it. This article explains the constitutional and policy issues surrounding the V-Chip and media filters generally.

 

Filtering the Internet: A Best Practices Model (1999)

(written with Beth Simone Noveck and Kermit Roosevelt)

This is a proposal for a filtering system that protects free speech values while also giving parents the ability to protect their children from pornographic and violent content. Drawing on criticisms that have been leveled against filtering systems by many civil liberties organizations over the years, the proposal is not only parent and child friendly but also free speech friendly as well.

 

Free Speech and Hostile Environments (1999)

Some people think that sexual harassment law is violating employee speech rights. This essay explains what the real issues are and argues that when sexual harassment law is properly focused on the goal of remedying employment discrimination it poses no problems for the First Amendment.

 

How Mass Media Simulate Political Transparency (1998)

Transparency is the ability to see through the operations of government, understand what government officials are doing and hold them responsible. You might think that more media exposure helps achieve these goals. But often, it has precisely the opposite effect. Today important elements of contemporary mass media coverage-- including media events, the culture of scandal, and the shifting line between what is public and private -- can actually undermine democratic values in the name of the public's right to know.

 

C. Law and Music

 

Law, Music, and Other Performing Arts (1991)(with Sanford Levinson)

Why law should properly be thought of as one of the performing arts, and why the problems of legal interpretation are surprisingly similar to those of musical and dramatic interpretation.

 

Interpreting Law and Music: Performance Notes on "The Banjo Serenader" and "The Lying Crowd of Jews" (with Sanford Levinson)

The latest installment of our inquiry into law and the performing arts, demonstrating the similar problems of interpretation that performers face when they perform offensive texts or enforce unjust laws.

 

Law as Performance (1998)(with Sanford Levinson)

A shorter version of the article, "Interpreting Law and Music."

 

 

D. Deconstruction and Post-Structuralism

 

Deconstructive Practice and Legal Theory (1987)

Explaining what deconstruction is, how it works and how it is relevant to the law and to legal theory.

 
Deconstruction (1996)

An brief introduction to the ways that deconstruction has influenced the philosophy of law.

 

Deconstruction's Legal Career (1998)

How deconstruction was introduced into the legal academy, and how this changed both law and deconstruction.

 

What is a Postmodern Constitutionalism? (1992)

This essay tries to explain how postmodernism affects the study of constitutional law.

 

Nested Oppositions (1990)

This review of a book critical of deconstruction argues for an interpretation of deconstruction in terms of nested oppositions, that is conceptual oppositions whose members "contain" each other. The article shows how the concept of nested oppositions clarifies many features of deconstructive argument and explains why deconstruction is perfectly consistent with the laws of logic.

 

Ideological Drift and the Struggle Over Meaning (1993)

As ideas concepts and slogans are inserted into ever new contexts, they change their political valence and political meanings. This phenomenon is called "ideological drift."

 

 

Tradition, Betrayal, and the Politics of Deconstruction (1990)

This article has two agendas. First it critiques the use of "tradition" as a way to define and limit the liberties guaranteed to citizens under the Constitution. Second the article argues that deconstruction can be used to support many different kinds of political positions; it is not necessarily progressive.

 

Transcendental Deconstruction, Transcendent Justice (1994)

What is the relationship between deconstruction and justice? Does deconstruction lead us inexorably to hopeless nihilism and total moral relativism? I argue that deconstruction, rightly understood, is committed to the existence of transcendent human values, and in particular a transcendent value of justice. This version of deconstruction is transcendental deconstruction. Along the way, I critique Derrida's views on law and justice, and show why he also must be committed to a transcendent value of justice.

 

Being Just with Deconstruction (1994)

A brief explanation of the relationship between deconstruction and justice.

 

E. Legal Semiotics and Legal Theory

 

The Proliferation of Legal Truth (2003)

This essay describes an important aspect of law's power. Law has power not only because it sets prices and sanctions on behavior, but also because it shapes and colonizes human understanding. Through the creation of legal categories, distinctions, causes of action, institutions and devices, law is continuously proliferating legal truths into the world, making things true and false in the eyes of the law. This capacity to create truth and to make things real is the flip side of law's power. Law has power because it can make things true or false in ways that matter to us; conversely, law can make things true or false in ways that matter to us because it has power over us.

The proliferation of legal truth is important for three reasons. First, the proliferation of legal truth shapes, directs, and constrains how people live their lives. Second, the proliferation of legal truth colonizes human imagination, shaping people's beliefs and their understandings about social reality. Third, the proliferation of legal truth is important because truth in the eyes of the law is not the only truth, and the way the world looks to law is not the only reality. Law's power to enforce its vision of the world can clash and conflict with other practices of knowledge, like medicine or psychology, and with other forms of truth, like historical or scientific truth.

 

Idolatry and Faith: The Jurisprudence of Sanford Levinson (2003)

This essay is written for a festschrift in honor of my friend Sanford Levinson. It describes some of the major themes of his work, including, most importantly, the role of faith in law.

 

A Night in the Topics: The Reason of Legal Rhetoric
 and the Rhetoric of Legal Reason (1995)

We can understand how legal reasoning works better if we recognize that it is structured in repeatable rhetorical topics. Rhetoric, in turn, is not simply mere show, display, or appeal to emotion. Rather, a central element of classical rhetoric is invention-- the use of problem solving devices to identify and frame problems and figure out how to solve them. This short essay explains what is at stake in recognizing that legal reasoning is rhetorical and topical.

 

The Crystalline Structure of Legal Thought (1986)

This is a short book on legal semiotics. It applies structuralist methods to analyze many of the most common forms of legal argument and show how they reproduce themselves in many different areas of the law.

 

The Promise of Legal Semiotics (1991)

A discussion of what legal semiotics is and how it can be used in legal analysis.

 

The Hohfeldian Approach to Legal Semiotics (1990)

This article shows the connections bewtween legal semiotics and Hohfeld's work on legal rights, as well as some interesting connections between Hohfeld and Saussure, the founder of semology.

 

Ideology as Constraint (1991)

The Critical Legal Studies movement is often associated with claims of doctrinal indeterminacy. This article argues that a critical approach to law is not based on the indeterminacy of legal doctrine but on the construction of doctrinal determinancy through ideology and the social construction of the legal imagination.

 

Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence (1993)

This is an essay in cultural or postmodern jurisprudence, which is an alternative to more traditional forms of analytical jurisprudence. Cultural jurisprudence argues that to understand the nature of law we have to understand the nature of legal understanding and how individuals are socially constructed to understand law in particular ways. An example of the cultural approach looks at the forces that lead people to understand the law as coherent or incoherent.

 

The Top Ten Reasons to be a Legal Pragmatist (1991)

Just what it says.

 

Interdisciplinarity as Colonization (1996)

A short essay about interdisciplinary studies in law, and about interdisciplinary studies in general.

 

The "Bad Man," the Good, and the Self-Reliant (1998)(with Sanford Levinson)

 

This article, written for a symposium celebrating the 100th anniversary of O.W. Holmes, Jr.'s famous essay, "The Path of the Law," argues that Holmes' theory of the "Bad Man" as a guide to understanding law is actually deeply influenced by Ralph Waldo Emerson, and that an Emersonian interpretation of Holmes sheds new light on the arguments Holmes makes in his famous essay.

 

Getting Serious about "Taking Legal Reasoning Seriously" (1999)(with Sanford Levinson)

This article explains that, given the actual practices of lawyers, the idea of "serious legal argument" is not as simple as it might first appear.

 

How to Win Cites and Influence People (1996)(written with Sanford Levinson)

This article is a lighthearted but critical look at the use of citation counts to measure scholarly influence in the legal academy. It turns out that there are some important connections between citation practices and legal culture, but not what you might expect.