Balkin and Pasquale, Meet Samaha

Jack Balkin and Frank Pasquale both have interesting points about the OWS movement and the Constitution.  Balkin argues that "the Occupy Wall Street protests offer a still deeper vision of the Constitution than simply a rejection of Citizens United," one that argues that the government has lost a sense of responsiveness that is essential under the Guarantee Clause.  He ends with this: "A broken government, unresponsive to the public, is more than a misfortune. It is a violation of our basic charter--our Constitution."  Pasquale adds that "problems caused by political and economic inequality have now reached constitutional dimensions," and points to the Alabama immigration law, coupled with an increase in the use of private prisons and prison labor, as an example of "a politico-economic system that can render the undocumented immigrant (and indeed, almost anyone who makes a few too many mistakes in life) a pariah." 

A nice complement and/or counterpoint to these posts is a wonderful new paper by Adam Samaha, Talk About Talking About Constitutional Law.  Samaha's piece was written in response to Balkin's forthcoming book, and it places it within the framework of what he calls discourse theories of constitutional law.  Here's how he describes the discourse project:

If we use the Constitution as a common language or source of authority that is not too restrictive, the argument runs, we might bridge several societal divisions: cultural divisions over values, status divisions between commoners and legal professionals, and intergenerational divisions between our judgment and ancient judgments.  Each generation will fight over fundamental questions, but all sides may point to the Constitution at any time, and the losing side might have "faith" that the prevailing regime will be "redeemed" in due time.

Samaha raises some interesting and critical questions about this approach.  Here's a summary from his introduction:

I will not show that discourse theorizing is necessarily wasteful, but I will offer uncomfortably mixed views on recent talk about talking about constitutional law.  My principal doubt involves whether a relatively loose constitutional discourse tends to increase the legitimacy of a political system.  An inclusive discourse that allows for many possible answers to constitutional questions does sound friendly.  But talk can accomplish only so much, and constitutional talk can raise the stakes of disputes in a way that discourages rather than encourages compromise, creativity, and trust.  If a large domain for constitutional discourse crowds out nonconstitutional argument, participants in the political system may find themselves further divided, not united, by easy recourse to constitutional claims.

It's a terrific paper, respectful but skeptical, careful and clear.  It doesn't seem to me to offer a rebuttal to the Balkin and Pasquale posts, and I don't think that was Samaha's intent, even with respect to Balkin's book.  But it does usefully remind us that there are a variety of forms of discourse that can revolve around the Constitution--constitutional meaning, constitutional construction or implementation, and non-constitutional talk--and that changing the mix can have both positive and negative effects.  Converting the OWS discussion into a discussion of the Constitution can raise its sense of structure, coherence, and high principle, but we also lose something when we convert non-constitutional talk into constitutional talk, and talk about constitutional implementation into talk about constitutional meaning, and may end up raising the rhetorical stakes in counter-productive ways.  I'm sure Frank and Jack would have excellent responses, and Samaha is clear that he offers his skepticism in a humble fashion.  But I think the discussion he offers is well worth thinking about, and I highly recommend his paper.