Postmodern Constitutionalism as Materialism

Professor J.M. Balkin’s recent essay in the Michigan Law Review assesses the implications that postmodernism holds for constitutional law. Although I agree with Balkin about many of the specific issues that he believes must be addressed in a postmodern constitutionalism, I find that his manner of talking about postmodernism is unproductive in an important way. Balkin quite correctly argues that a postmodern constitutionalism should not mimic the fragmented and superficial culture of postmodernity, nor should it devolve simply to normative claims that postmodernity is desirable and should be embraced or adopted within the law. However, Balkin’s thesis that a postmodern constitutionalism must focus on the material determinants of social life is an ambiguous, if not troubling, alternative. Postmodern thought recognizes that all understanding is context-specific, but this very lesson cautions against attempting to decode the material features of our social context in order to understand ourselves. I shall attempt to explain my reservations about Balkin’s postmodern constitutionalism as clearly and concisely as Balkin has written his essay.