Respect and Contempt in Constitutional Law, or, is Jack Balkin Heartbreaking?
Northwestern University School of Law
December 3, 2011
Maryland Law Review, Vol. 71, 2012
Northwestern Public Law Research Paper No. 11-65
How many constitutions have we? Part of what we hope for from constitutional law is that we be united, despite our political differences, by a unifying political charter. John Rawls speaks for many when he writes that a well-ordered society “is a society all of whose members accept, and know that the others accept, the same principles (the same conception) of justice.”
Jack Balkin argues that we have to give up on the Rawlsian aspiration, and learn to live in a world where, at a fundamental level, our fellow citizens are strange to us. They believe in different principles than we do. This is bound to try our faith in the regime. Perhaps America is not what I thought it was. Perhaps our marriage has always been a lie. We must learn to live with heartbreak.
A reflection on the frustration of the Rawlsian ideal sheds light on the real existential basis of the legitimacy of American law. Each of us has a different Constitution in our heads. The basis of social unity is not a set of principles upon which we converge, but faith and hope that someday our ideals will prevail.
Number of Pages in PDF File: 19
Keywords: Respect, Contempt in Constitutional Law, Jack Balkin, Heartbreaking
JEL Classification: K10, K19, K30, K39Accepted Paper Series
Date posted: January 5, 2012 ; Last revised: September 6, 2012
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