Balkin on “Arguments From The Future.”

March 14th, 2013

Jack Balkin, once again, has come out with an innovative new way of looking at the Constitution, called “Arguments from the Future.”

Arguments from the future are arguments about the imagined trajectory of history, and how we think we will be viewed from that trajectory. If, like Martin Luther King, you believe that the arc of the moral universe is long, but that it bends toward justice, you will want to be sure that you do justice today, so that people tomorrow will see that you were on the right side when the chips were down.

There is little doubt in my mind that arguments from the future can be extremely powerful, especially to judges who don’t have to worry about keeping their jobs, but might well worry what their legacy will be.  Indeed, the less you have to worry about your job security in the present, the more you might tend to worry about the future. (Think about what drives second term presidents, for example.).

Arguments from the future do not fit easily into Philip Bobbitt’s famous account of the modalities of constitutional argument. As I said above, they are not historical arguments– Bobbitt says those are arguments from original understanding,  original intention, original meaning. They are not textual, structural or precedental arguments. They are not arguments from consequences, because they are not about producing good consequences per se. Rather, their concern is being on the right side of history as viewed from an imagined future.

Arguments from the future might be a special class of arguments from national ethos. Bobbitt says that such arguments are arguments about national character. But in Constitutional Redemption, I argue that what Bobbitt calls “ethical” arguments are really narrative arguments. They are arguments about the meaning of history viewed from a present-day perspective. As such, they can also be arguments about the imagined trajectory of history.  Such arguments can be about the meaning of the past in light of the present, but they can also be arguments about the meaning of the present in light of an imagined future.

Thus, I believe that arguments from the future are narrative arguments. They are arguments about how we imagine the story will go forward, arguments about what we imagine the future will be like. The exhort us to be faithful to that future, and to ally ourselves with the imagined judgments of the future.

Thus, like all of the other modalities of constitutional argument, arguments from the future can often be made on both sides of a legal question. Everything depends on what we imagine the future will be like.

Today, most Americans below the age of, say, 40, think that the recognition of same-sex marriage is an inevitability.  So to them, at least, it seems as if the proponents of marriage equality can make a much stronger argument from the future than the opponents can.  As a proponent of marriage equality, I agree with this assessment. But the point about all arguments from the future is that they are arguments that imagine the future, rather than describe what it will actually be. We never fully know what the future will be like, and it is rarely exactly what we imagine in the present.  Arguments from the future are fallible, because we ourselves are fallible.

Following my usual policy, I will express no agreement or disagreement with Jack’s new idea for at least 24 hours. Jack, unlike any other legal theorist, has this bizarre effect on me. At first glance all of his ideas seem groundbreaking and flawless. I’m enamored by them! It usually takes me some time for me to cogitate and ruminate over them. After about a day, I realize, that the idea wasn’t what I thought, or Jack’s brilliant prose elided over some shortcoming, or something about it bothers me. But, for now, I present it without comment.

Update: Mike Rappaport provides insights of how an originalist jurist can write an argument from the future.

The best way an originalist could protect himself from these types of criticism is to do good originalist research and to make clear that he is not endorsing the morality of the provision.  Consider Justice Thomas’s dissent in Lawrence v. Texas:

I write separately to note that the law before the Court today “is … uncommonly silly.” . .  .  If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.

Justice Thomas makes clear that he does not favor the law.  Of course, one could go further than Justice Thomas does.  An originalist justice (who had good reasons for saying that the 14th Amendment did not cover homosexual sodomy) could say: 1. I regard this law as immoral, 2. I would happily strike it down if the Constitution allowed me, and 3. I would support a constitutional amendment prohibiting it.

It would be hard to portray a justice who wrote an opinion in that manner as bigoted.

You see, this is Jack’s gift. He can instantly make people rethink what they already thought. I’m still mulling it over (some thoughts in the comments below).