Jack Balkin
Encyclopedia
Jack M. Balkin is an American legal scholar. He 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
, and he also writes political and legal commentary at a weblog, Balkinization
.
, Missouri
, Balkin received his A.B. and J.D.
degrees from Harvard University
and his Ph.D.
in philosophy from the University of Cambridge
. From 1982 to 1984 he was a litigation associate at the New York law firm of Cravath, Swaine & Moore
. He was elected a Fellow of the American Academy of Arts and Sciences
in 2005.
s 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.
, 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.
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.
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
Law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
and the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
at Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
. 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
University of the people
University of the People is a non-profit, tuition-free, unaccredited online academic institution headquartered in Pasadena, California and founded by entrepreneur Shai Reshef in January 2009....
, and he also writes political and legal commentary at a weblog, Balkinization
Balkinization (Blog)
Balkinization is a law blog focused on constitutional, First Amendment, and other civil liberties issues. The weblog was created in 2003 by Jack Balkin, a professor of U.S. constitutional law at Yale Law School. Balkinization has been critical of the Bush Administration's record on civil liberties...
.
Education and early career
Born in Kansas CityKansas City, Missouri
Kansas City, Missouri is the largest city in the U.S. state of Missouri and is the anchor city of the Kansas City Metropolitan Area, the second largest metropolitan area in Missouri. It encompasses in parts of Jackson, Clay, Cass, and Platte counties...
, Missouri
Missouri
Missouri is a US state located in the Midwestern United States, bordered by Iowa, Illinois, Kentucky, Tennessee, Arkansas, Oklahoma, Kansas and Nebraska. With a 2010 population of 5,988,927, Missouri is the 18th most populous state in the nation and the fifth most populous in the Midwest. It...
, Balkin received his A.B. and J.D.
Juris Doctor
Juris Doctor is a professional doctorate and first professional graduate degree in law.The degree was first awarded by Harvard University in the United States in the late 19th century and was created as a modern version of the old European doctor of law degree Juris Doctor (see etymology and...
degrees from Harvard University
Harvard University
Harvard University is a private Ivy League university located in Cambridge, Massachusetts, United States, established in 1636 by the Massachusetts legislature. Harvard is the oldest institution of higher learning in the United States and the first corporation chartered in the country...
and his Ph.D.
Ph.D.
A Ph.D. is a Doctor of Philosophy, an academic degree.Ph.D. may also refer to:* Ph.D. , a 1980s British group*Piled Higher and Deeper, a web comic strip*PhD: Phantasy Degree, a Korean comic series* PhD Docbook renderer, an XML renderer...
in philosophy from the University of Cambridge
University of Cambridge
The University of Cambridge is a public research university located in Cambridge, United Kingdom. It is the second-oldest university in both the United Kingdom and the English-speaking world , and the seventh-oldest globally...
. From 1982 to 1984 he was a litigation associate at the New York law firm of Cravath, Swaine & Moore
Cravath, Swaine & Moore
Cravath, Swaine & Moore LLP is a prominent American law firm based in New York City, with an additional office in London. The second oldest firm in the country, Cravath was founded in 1819 and consistently ranks first among the world's most prestigious law firms according to a survey of partners,...
. He was elected a Fellow of the American Academy of Arts and Sciences
American Academy of Arts and Sciences
The American Academy of Arts and Sciences is an independent policy research center that conducts multidisciplinary studies of complex and emerging problems. The Academy’s elected members are leaders in the academic disciplines, the arts, business, and public affairs.James Bowdoin, John Adams, and...
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 memeMeme
A meme is "an idea, behaviour or style that spreads from person to person within a culture."A meme acts as a unit for carrying cultural ideas, symbols or practices, which can be transmitted from one mind to another through writing, speech, gestures, rituals or other imitable phenomena...
s 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
T. K. Seung
T. K. Seung is a Korean American philosopher and literary critic. His academic interests cut across diverse philosophical and literary subjects, including ethics, political philosophy, philosophy of law, cultural hermeneutics, and ancient Chinese philosophy....
, 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 KennedyDuncan Kennedy
Duncan Kennedy is the Carter Professor of General Jurisprudence at Harvard Law School and a founder of critical legal studies as movement and school of thought. Kennedy has been a member of the ACLU since 1967. According to his own testimony, he has never forgotten to pay his dues.-Education and...
, Balkin developed the field of legal semiotics
Semiotics
Semiotics, also called semiotic studies or semiology, is the study of signs and sign processes , indication, designation, likeness, analogy, metaphor, symbolism, signification, and communication...
. 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
Fractal
A fractal has been defined as "a rough or fragmented geometric shape that can be split into parts, each of which is a reduced-size copy of the whole," a property called self-similarity...
structure. Balkin employed deconstruction
Deconstruction
Deconstruction is a term introduced by French philosopher Jacques Derrida in his 1967 book Of Grammatology. Although he carefully avoided defining the term directly, he sought to apply Martin Heidegger's concept of Destruktion or Abbau, to textual reading...
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
Sanford Levinson
Sanford Victor Levinson is a prominent American liberal law professor and acknowledged expert on Constitutional law and legal scholar and professor of government at the University of Texas Law School...
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 DealNew Deal
The New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were Roosevelt's responses to the Great Depression, and focused on what historians call...
because Franklin Roosevelt
Franklin D. Roosevelt
Franklin Delano Roosevelt , also known by his initials, FDR, was the 32nd President of the United States and a central figure in world events during the mid-20th century, leading the United States during a time of worldwide economic crisis and world war...
was able to appoint eight new Supreme Court Justices between 1937 and 1941. Balkin and Levinson's theory contrasts with Bruce Ackerman's
Bruce Ackerman
Bruce Arnold Ackerman is an American constitutional law scholar. He is a Sterling Professor at Yale Law School and one of the most frequently cited legal academics in the United States....
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" 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.As author
- Constitutional Redemption: Political Faith in an Unjust World (2011)
- The Laws of Change: I Ching and the Philosophy of Life (2002)
- Cultural Software: A Theory of Ideology (1998)
As editor
- The Constitution in 2020 (Oxford Univ. Press 2009 ISBN 978-0195387964) (with Reva B. Siegel)
- Cybercrime: Digital Cops in a Networked Environment (NYU Press 2007 ISBN 978-0814799833) (with James Grimmelmann et al.)
- 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 ISBN 0-8147-9857-8) (with Sanford Levinson)
- Processes of Constitutional Decisionmaking (Aspen Publications, 5th edition 2006 ISBN 978-0735550629) (with Paul Brest, Sanford Levinson, Akhil Amar, and Reva Siegel).
External links
- Jack Balkin's Home Page
- Jack Balkin's Bibliography
- Jack Balkin's Blog, Balkinization
- Yale Information Society Project
- Yale Faculty Profile
- Videos of debates and discussions involving Balkin on BloggingHeads.tvBloggingheads.tvBloggingheads.tv is a political, world events, philosophy, and science video blog discussion site in which the participants take part in an active back and forth conversation via webcam which is then broadcast online to viewers...
- Balkin's biography, University Of The People website
See also
- list of deconstructionists