This world is vast, dangerous, and dying. You take your first steps, uncertain of who you are, where you are going, or who is responsible for the conditions in which you find yourself. You can learn more, but you will never learn everything that there is to know. You will encounter adversity at every footfall, and you will never be able to fix everything that is broken. If you want anything to really change, you’ll need to begin the world over again.
This is the world of FromSoftware’s Elden Ring, a video game of astonishing scope, scale, and ambition. In the game’s primary setting, known only as the Lands Between, a semblance of political order can be glimpsed in chaotic, conflictual flux. The more we learn about the order—the Golden Order—the less we know who or what to root for.
The Golden Order is the closest thing that the Lands Between has to a constitutional regime. Or had, anyway. Its current ruler is Queen Marika, who ascended to power more or less out of a desire to avenge the persecution of her people by a now-virtually-extinct race of zealots who saw the butchery of others as a means to divine ends. She is absent from most of the game’s action, and her efforts to bring order to political chaos lie in visible ruins all around the player.
Marika had her reasons, but it is hard to feel too sorry for her. What control she had over the Lands Between was consolidated through genocidal violence that outstripped anything that her people experienced. Domination is a component of the everyday operation of the Golden Order; and genocide continues in a Land of Shadow which is literally invisible and inaccessible to Lands Between residents. The persevering gamer must ultimately choose whether to set fire to the Golden Order’s primary symbol and source of authority: the Erdtree. Then, upon defeating Marika, they decide what comes next for the Lands Between. The available options include the restoration of the Golden Order, purified of Marika’s vices; the replacement of the Order with “an order not of gold, but the stars and moon of the chill night,” an Age of Stars that is hopefully free of the meddling of fickle gods altogether; and the destruction of everything by fire.
I’m not sure whether Jack Balkin would burn the Erdtree. I suspect he would not destroy the Lands Between by fire. And I do know that he would not burn the Constitution of the United States. Balkin’s Memory and Authority maps a universe in which we need not choose between chaos and domination. He would guide us towards democracy.
Balkin knows well that the Constitution originated in sin. But he has faith that it can be redeemed—not through the unilateral actions of some heroic Elden Lord, but through popular power, exercised within the limits of a basic constitutional framework and in the service of fundamental constitutional values to which Americans, past and present, have dedicated their lives, fortunes, and sacred honor. Maximizing this popular power entails harnessing the power of memory; maximizing the power of memory requires originalism, or at least a willingness to argue about the Constitution’s original meaning.
I’ll consider Balkin’s spellbinding constitutional theory alongside the cosmological work of Roberto Mangabeira Unger, among the founders of a critical legal studies (“CLS”) movement to which Balkin was, in his early career, a major contributor. Writing with physicist Lee Smolin, Unger has contended for an understanding of the (physical) universe in which very little is “fixed.” The resemblance between Unger’s physical and social ontology is striking, and Unger underscores it.
A risk one runs in attacking what Unger decries as “false necessity,” whether in the physical or social world, is that one loses track of durability. Thinking in terms of invariant physical laws can be extraordinarily useful. Analogously, it might be useful to think in terms of a fixed Constitution, complete with invariant secondary rules which constrain our politics. There may be no cosmic command which entails that “two Senators from each State” means what it is conventionally understood to mean. But contesting that conventional understanding—trying to get around what Sanford Levinson has described as the “Constitution of Settlement”—will regularly produce the same negative result because of durable features of our constitutional universe.
Memory and Authority sees Balkin trying to occupy a kind of cosmological middle ground between the anything-goes indeterminacy associated (however unfairly) with CLS and rigid, deterministic accounts that are ascendant within conservative strands of originalism. Because the latter are considerably more influential, he spends more time with them, urging that the Constitution should not be understood to fix “our law” at the level of specificity for which conservative originalists strive. The more that our constitutional universe looks like the picture of the physical world which Unger contests, the more it looks like the Golden Order—inaccessible, dominating, ripe for revolutionary upheaval. Fortunately (says Balkin), although some components of the Constitution are fixed, there is plenty of space to build democracy.
At a high level of generality, I think Balkin is probably right to seek a middle ground. But I worry about the specific parameters of his constitutional universe. The limits of Balkin’s constitutional cosmology are most apparent in his treatment of originalism. In recommending that non-originalists make arguments from the Constitution’s original meaning and contending for his distinctive theory of “living” originalism, he does not adequately address a longstanding and increasingly urgent concern about legitimating what is, in practice, an instrument of conservative constitutional power. Nor does he grapple with recent scholarship which casts doubt upon the binary choice between constitutional faith and constitutional powerlessness with which he presents readers, as well as his claim that the American attraction to originalism is a cosmological constant. As a consequence, he misses opportunities to confront the ways in which constitutional fidelity fixes our politics, as well as to question just how fixed fidelity is. Part I establishes the analogy between cosmology and interpretive theory and situates Balkin’s work. Part II critiques Balkin’s constitutional cosmology. To borrow a Biblical admonition concerning faith—a fixture (sorry) in Balkin’s work—it seems neither cold nor hot enough. It is not cold enough because Balkin understates the extent to which determinate constitutional institutions and norms and durable political-economic structures skew constitutional decision-making in democratically disempowering ways. It is not hot enough because constitutional construction demands faith in a constitutional framework which asks too much of people who have been excluded by it, and because Balkin neglects the ways in which that framework has been transformed by constitutional faith traditions that strain its confines. Part III contends for a “hotter” view of constitutionalism, focusing attention on how Native peoples have transformed the American constitutional order despite lacking Balkin’s peculiar constitutional faith.