Jack Balkin

Education and early career

Born in Kansas City, Missouri, Balkin received his A.B. and J.D. degrees from Harvard University and his Ph.D. in philosophy from the University of Cambridge. He clerked for Judge Carolyn Dineen King of the Fifth Circuit Court of Appeals. From 1982 to 1984 he was a litigation associate at the New York law firm of Cravath, Swaine & Moore. He taught at the University of Missouri at Kansas City from 1984 to 1988 and at the University of Texas from 1988 to 1994. He joined the Yale faculty in 1994. He has also taught at Harvard University, New York University, Tel Aviv University, and Queen Mary College at the University of London. He was elected a Fellow of the American Academy of Arts and Sciences in 2005.

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." 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.

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 that 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, developed in his 2011 book, Living Originalism, is both originalist and living constitutionalist. He argues that there is no contradiction between these approaches, 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" 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"—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.

The National Surveillance State

In a 2006 essay with Levinson, and a 2008 article, Balkin discusses the emergence of a "National Surveillance State" that uses the collection, collation and analysis of information to govern. The National Surveillance State is a natural byproduct of technological development and demands for government services. Balkin argues that “[t]he question is not whether we will have a surveillance state in the years to come, but what sort of state we will have.”

Balkin distinguishes between two models: an authoritarian information state and a democratic information state. Authoritarian information states are information misers and information gluttons: they collect as much information as possible and they resist sharing it or making their own operations public. Democratic information states are information gourmets and information philanthropists: they collect only what they need, they produce information for and share information with their citizens and they make their own operations democratically accountable. Democratic information states also destroy government collected information when it is no longer necessary. In practice, much privacy protection came from the fact that people forgot what had happened. But in the digital age, nothing is ever forgotten, so appropriate discarding of the results of government surveillance must be mandated.

As the surveillance state grows, Balkin argues, new civil liberties protections are necessary, just as they were necessary with the growth of the administrative state after the New Deal and the National Security State after World War II. The executive branch must be redesigned with internal checks and balances to police itself, to report on its activities, and to prevent abuse. Finally, technology must be used to record what officials do and look for signs of government misconduct: "The best way to control the watchers is to watch them as well."

As author

As editor

Journal articles