The Constitution Can Do No Wrong

Abstract

Preserving constitutional legitimacy by holding that constitutional text can be “redeemed” from incorrect perceptions is an important theme in Jack Balkin's Living Originalism. That premise stems from the text's reference to a “more perfect union,” which encompasses an ideal that sits above doctrines of the U.S. Supreme Court at any given time. This piece explores the concept of redemption by drawing comparisons between our constitutional text and the British Crown, with a special emphasis on the influential English journalist, Walter Bagehot, and his work, The English Constitution. Exploring Bagehot's analysis of the British Crown reveals an infallibility principle similar to the constitutional text. The infallibility principle empowers government by preserving reverence. It also provides a fiction whereby the Supreme Court can make errors, but the constitutional text itself remains flawless. The comparison between the British Crown and the Constitution leads to three consequences emanating from the presumption that the Constitution “can do no wrong.” First, some things are too awful to be constitutional. Second, some things are too awful to have been constitutional. And third, some things about the Constitution are too sensitive to discuss in public. These interpretive principles exemplify the role that legal fictions must play in successful constitutionalism.