From Wikipedia, the free encyclopedia
Jack M. Balkin (born August 13, 1956 in Kansas
City, Missouri) is the
Knight Professor of Constitutional Law and the First
Amendment at Yale Law School. Balkin is the founder
and director of the Yale
Information Society Project (ISP), a research center whose
mission is "to study the implications of the Internet,
telecommunications, and the new information technologies for law
and society." Balkin is a member of the Advisory Committee of University of the People [1], and he
also writes political and legal commentary at a weblog, Balkinization.
Education and early
career
Balkin received his A.B. and J.D. degrees from Harvard
University and his Ph.D. in philosophy from Cambridge University. From 1982 to 1984 he
was a litigation associate at the New York law firm of Cravath, Swaine &
Moore.
Memetics, Ideology,
and Transcendence
Balkin's 1998 book, Cultural Software: A Theory of
Ideology, argued that ideology could be explained in terms of
memes and processes of cultural
evolution. He argued that ideology is an effect of the "cultural
software" or tools of understanding that become part of human
beings and that are produced through the evolution and transmission
of memes. At the same time, Balkin argued that all ideological and
moral analysis presupposes a transcendent ideal of truth and "a
transcendent value of justice."[2] Like T. K. Seung, he
suggests that a transcendent idea of justice -- although incapable
of perfect realization and inevitably "indeterminate"-- underlies
political discourse and political persuasion.[3]
Ideological drift and
legal semiotics
Balkin coined the term ideological drift to describe a
phenomenon by which ideas and concepts change their political
valence as they are introduced into new social and political
contexts over time. Along with Duncan Kennedy, Balkin developed the
field of legal semiotics. Legal semiotics shows how legal
arguments feature recurrent tropes or topoi that respond to each
other and whose opposition is reproduced at higher and lower levels
of doctrinal detail as legal doctrines evolve. Hence Balkin claimed
that legal argument has a self-similar "crystalline" or fractal structure. Balkin
employed deconstruction and related literary
theories to argue that legal thought was structured in terms of
"nested oppositions"-- opposed ideas or concepts which turn into
each other over time or otherwise depend on each other in novel and
unexpected ways. Although he draws on literary theory in his work
on legal rhetoric, Balkin and his frequent co-author Sanford
Levinson contend law is best analogized not to literature but
to the performing arts such as music and drama.
Partisan
entrenchment
Balkin and Levinson argue that constitutional revolutions in
judicial doctrine occur through a process called partisan
entrenchment. The party that controls the White House can
stock the federal courts with new judges and Justices who have
views on key constitutional issues roughly similar to those of the
President. This shifts the median Justice on the Supreme Court and
changes the complexion of the lower federal courts, which, in turn,
eventually affects constitutional doctrine. If enough new judges
are appointed in a relatively short period of time, changes will
occur more quickly, producing a constitutional revolution. For
example, a constitutional revolution occurred following the New Deal
because Franklin Roosevelt was able to
appoint eight new Supreme Court Justices between 1937 and 1941.
Balkin and Levinson's theory contrasts with Bruce Ackerman's
theory of constitutional moments, which argues that constitutional
revolutions occur because of self-conscious acts of democratic
mobilization that establish new standards of political legitimacy.
Balkin and Levinson view partisan entrenchment as roughly but
imperfectly democratic; it guarantees neither legitimate nor
correct constitutional interpretation.
Constitutional
interpretation
Balkin's constitutional theory is both originalist and living
constitutionalist. He argues that there is no contradiction between
these theories, properly understood. Interpreters must follow the
original meaning of the constitutional text but not its original
expected application; hence much constitutional interpretation
actually involves constitutional construction and state building by
all three branches of government. Balkin's "framework
originalism"[4] views
the Constitution as an initial framework for governance that sets
politics in motion and makes politics possible; it must be filled
out over time through constitutional construction and state
building. This process of building out the Constitution is living
constitutionalism.
Democratic
culture
Balkin's work on the first amendment argues that the purpose of
the free speech principle is to promote what he calls a democratic
culture. The idea of democratic culture is broader than a
concern with democratic deliberation or democratic self-government,
and emphasizes individual freedom, cultural participation and
mutual influence. A democratic culture is one in which ordinary
individuals can participate in the forms of culture that in turn
help shape and constitute them as persons. Balkin argues that free
speech on the Internet is characterized by two features: "routing
around" media gatekeepers and "glomming on," i.e., non-exclusive
appropriation of cultural content that is melded with other sources
to create new forms of culture. These distinctive features of
Internet speech, he argues, are actually features of speech in
general and thus lead to a focus on democratic participation in
culture.
Selected
works
As sole
author
As editor
- The State of Play: Law, Games, and Virtual Worlds (NYU
Press 2006 ISBN 0-8147-9972-8) (with Beth Simone Noveck)
- What Roe v. Wade Should Have Said (NYU Press
2005 ISBN 0-8147-9918-3)
- What Brown v. Board of Education Should Have
Said (NYU Press 2001 ISBN 0-8147-9890-X)
- Legal Canons (NYU Press 2000) (with Sandy
Levinson)
- Processes of Constitutional Decisionmaking (Aspen
Publications, 5th edition 2006) (with Paul Brest, Sanford Levinson,
Akhil Amar, and Reva Siegel).
External
links
See also
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