Reflecting pessimistically about the inevitable downfall of the United States at the hands of demagogues and populist anger, the British historian Thomas Macaulay famously described the American Constitution as “all sail and no anchor.” The Constitution, Macaulay claimed, could provide the structure for government, but could not act as a unifying force among the factions that inevitably arise through democratic politics. Lord Macaulay's vision did not come to pass, but the question of whether the American Constitution (or any constitution) could provide stability among the changing whims of democratic majorities has vexed statesmen such as Hamilton and Lincoln, judges such as Oliver Wendell Holmes Jr. and Learned Hand, and theorists ranging from J. G. A. Pocock to Carl Schmitt to John Hart Ely. Indeed, in recent years, political theorists have shown a revived interest in the role of constitutionalism within and among nation-states, and in a world defined by supranational bodies such as the European Union.

For the American legal community, Macaulay's metaphor has particular resonance. The last three decades have seen scholarly and public debate about whether judges have an obligation to interpret the Constitution and given statutes according to the original public meaning they held upon ratification, or whether they may interpret the Constitution as a more malleable and “living” document. This is the question that undergirds contentious confirmation hearings for Supreme Court justices and allegations of judicial activism. Commonly perceived as a conservative means of limiting judicial action—by forcing judges to defer to a legislative will or, at least, to ignore their own policy positions in making decisions—the extent to which originalism is compelling or useful remains contentious among both liberals and conservatives. The idea of the living constitution, on the other hand, stands opposed to originalism. It allows judges the room to drive the law forward, not by rejecting the Constitution but by viewing it as a reference rather than a recipe. To borrow from Macaulay, this debate can be rephrased as the question whether the Constitution is an anchor that keeps politics and law in one place, or a sail that drives politics and law forward. In Living Constitutionalism, Jack Balkin argues that the Constitution is both.

Balkin sets out to show that originalism and liberal constitutionalism are not antithetical. In the process, he offers a passionate, extended reflection on the relationship between constitutional interpretation, constitutional structure, and the origins of America's attachment to the document itself. Living Constitutionalism stands alongside his new Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011). For Balkin, the world is filled with suffering and injustice—problems that may diminish gradually over time, but that never completely vanish. Constitutions, Balkin explains, are “agreements with hell, flawed, imperfect compromises with the political constellation of the moment” (Constitutional Redemption, 6). He rejects narratives that view constitutional histories as stories of either progress or decline, accepting instead the fact that the Constitution should serve not as a totem to be worshipped or a god to fear, but as a source of faith that there are legitmate and democratic means for people in many generations to work toward a more just and politically sound community. Through faith in the Constitution, the Constitution's original purpose to create “a more perfect union” may be experienced and enacted across centuries.

The debate between originalists and living constitutionalists is largely a debate about how to engage with the Constitution over time. Balkin attempts to bring the two sides together by redefining the terms of the debate. Specifically, he offers an understanding of the role of the Constitution—what he calls framework originalism—and a theory of constitutional interpretation and construction—which he calls “text and principle.” His vision of the Constitution is one that he hopes will resonate across party and ideological lines, providing a legitimate means for using a centuries-old document in the twenty-first century. Although Balkin's success at building a bridge between originalists and living constitutionalists is not assured, he offers a convincing defense of the role of the Constitution not merely in defining law, but in promoting democratic politics.

Framework originalism is not the originalism of Senate confirmation hearings—with its belief in the need to read a text according to its original meaning. That originalism he calls “skyscraper originalism,” because of its fundamental belief that the Constitution is a completed structure, unchanging across generations. Under framework originalism, the Constitution sets the groundwork for a politics that takes place not merely through interpretation of the Constitution itself, but through the various political and deliberative structures that the Constitution established. “Put in terms of Article V,” Balkin explains, “skyscraper originalism views amendment as the only method of building the Constitution; by contrast, framework originalism sees a major role for constitutional construction and implementation by the political branches as well as by the judiciary” (22). Construction, in this context, is a term of art for the act of creating laws and political structures from the vagueness and silence that can be found in any written text. The Constitution, for Balkin, may be incomplete, but it remains a constant force among shifting views of rights and justice across generations. By grounding later decisions in the Constitution, the decisions of later generations will have a legitimacy equal to that of the founding generation. This being so, “a central lesson of constitutional design is that the present cannot control everything that the future may do, and it should not try. Instead it should try to set up a system that both disciplines and nourishes the future without conclusively determining its shape” (31).

Appropriately enough for a book about faith in the Constitution, Balkin describes the Constitution as representing a trinity of laws. It is the basic law, which provides a framework for self-governance; it is a higher law, which guarantees certain values such as justice, equality, and human rights; and it is our law—that is, the law that connects various generations of Americans. Given these multiple incarnations, the proper way to read the Constitution is with an eye not merely to the text, but also to the higher principles underlying the text. Balkin examines key constitutional debates about the Commerce Clause, the Privileges and Immunities Clause, and the place of equality in American political life to demonstrate his method. Ultimately he reveals a Constitution that can (and should) be used differently by various factions in political life—from lawyers to judges to politicians—to reflect ongoing and unanswered debates in American political life. Such engagement by more than simply judges in constitutional construction and participation helps renew the Constitution for each generation as a legitimate political document and source of unity.

It is unlikely that Balkin's redefinition of originalism will convince the skyscraper originalists he criticizes. Few of the living constitutionists they criticize actually ignore the text of the Constitution completely. Accordingly, the hardline originalist would likely find that Balkin's use of “text” and “principle” still provides too much leeway for judges to impose their own passions and policy views on the Constitution. Yet while Balkin's argument may not end debates between fans of a passive and those of an active judiciary, it may remind readers of the importance that the Constitution and constitutions more generally play in political life.

Political theorists will find much to appreciate in Balkin's work. Instead of viewing the Constitution as a tool for lawyers and judges, he affirms the role of constitutionalism as a means by which political power can be legitimately exercised. Indeed, because the act of constitutional interpretation is practiced not only by judges but also by politicians and social movements, the Constitution is a political, as well as a legal, document. Not just a sail and an anchor, Balkin makes a convincing case for the Constitution as rudder, too, in a ship of state steered by all three branches of the government.