Journal of Law and Political Economy

Jack Balkin’s scholarship exhibits an indecisive faith, symptomatic of legal liberalism, committed to belief in the future moralization of politics and disavowal of that belief. This yields indecisive theories of constitutionalism, politics, jurisprudence, and history; repeatedly, focus on progress, open-endedness, and discussion neglects how previous decisions and entrenched institutions foreclose alternatives. Above all, Balkin disregards how capitalism precludes democratic redemption of liberal ideals. The Constitution entrenched capitalist social property relations and insulated them from the democratic process. Capitalism’s social compulsions foreclose democratic redemption of the liberal ideal of equally respecting the freedom of all. Constitutional legitimacy in capitalist democracy is entangled in contradictory imperatives to sustain both civic solidarity and accumulation. By undermining regimes of constitutional legitimation, accumulation has yielded cyclical patterns of constitutional development. Responsible struggle to achieve liberal ideals must acknowledge that capitalism forecloses their redemption but that no liberal overcoming of capitalism is currently possible.