The Kelsen Exclusion and the Jurisdictional Claim Balkin Now Defends

At an academic conference about a decade ago, legal philosopher Duncan Kennedy, who was retiring, said that at Harvard Law, they teach the students that judges and lawyers are policy makers, and that all that rule of law stuff was just for inferior lawyers.
My piece on Yale law professor Jack Balkin explains what that meant in practice.
Stephen Turner’s paper on Kelsen’s American reception tells the origin story for this attitude. What Kennedy admitted in candor, Harvard had been enacting for seven decades. The Kelsen exclusion shows the coalition’s jurisdictional claim in its formative moment, before later scholars polished the theory into something called constitutional interpretation.
Hans Kelsen arrived at Harvard in 1940 with the highest continental legal reputation of his generation. He gave the Oliver Wendell Holmes Lectures. He wanted to stay. The faculty pushed him out. The stated reasons ranged across neo-Kantian philosophical disputes and questions about relativism. The function of his removal was simpler. Kelsen’s pure theory of law threatened the jurisdictional claim that made Harvard Law what it was.
Kelsen’s theory was deflationary. Law is law because made according to law. Democracy is majority rule through legal procedures. The criteria for calling a regime democratic are procedural, not substantive. Kelsen called the transformation of political preferences into binding law “metamorphosis,” and he insisted the question of what law means is a legal question answered by courts, not a political question answered by scholars.
By 1940 Harvard had absorbed Legal Realism for two decades. Holmes had taught that the life of the law was experience rather than logic. Frankfurter had moved the administrative state into the curriculum. The casebook tradition trained students to read cases as policy documents dressed in deductive argument. American legal education had already collapsed the fact-value distinction in law. Realism was the domestic version of what Schmitt did on the Continent. Treat legal reasoning as a mask for political decision, and the trained lawyer becomes the man who wears the mask.
Kelsen was the one serious philosophical alternative available to the Anglophone world. His pure theory rebuilt formalism on foundations strong enough to survive the Realist attack. Had Kelsen been accepted at Harvard, the Realist revolution might have been forced into dialogue with a formalism it could not easily dismiss. Rejecting him closed off the dialogue. The 1940 expulsion is the moment Harvard foreclosed the main philosophical alternative to its developing program.
Carl Friedrich, Talcott Parsons, and Lon Fuller had built their war-era “defense of democracy” around a different premise from Kelsen’s. Friedrich argued for rule by a responsible elite of bureaucrats. Parsons wrote that a large sphere of American affairs is governed by rules of reason wielded by experts rather than by the people. Fuller argued jurisprudence must start with justice rather than with law as given. All three moves achieve the same result. The trained scholar, not the text or the electorate, becomes the source of legal authority.
Friedrich’s contribution is the central one because it supplies the move with its theoretical architecture. Turner describes Friedrich’s key distinction between a legalistic and a substantive conception of constitutional order. A legalistic conception treats the constitution as a written document whose meaning is answered by legal methods. A substantive conception treats the constitution as an expression of an underlying political community whose character requires interpretation. Once the substantive view is accepted, the interpreter draws political conclusions from the nature of the constitutional order, not from the text. The constitution becomes whatever the order underneath it is said to be, and the scholar is the man who says what the order is.
That description fits Jack Balkin’s living originalism. Balkin insists constitutional meaning lives in framework principles whose application requires continuing elaboration. The elaborator is the scholar. The framework principles permit conclusions not grounded in the text. The move has the structure Friedrich pioneered eight decades earlier. What changed is the packaging. Friedrich defended emergency rule and bureaucratic discretion. Balkin defends progressive constitutional outcomes. The jurisdictional logic is identical.
Kelsen’s view of American judicial independence as a myth was inherited from the English Civil War, when the king’s appointed judges acted against him. Kelsen’s point was that these were still political appointments. The independence was rhetorical cover for a political arrangement. Kelsen rejected the theory and offered instead the view that protection of freedom depends on the people through legal processes, not on a priestly caste of interpreters. This is what the Harvard coalition could not tolerate. Kelsen’s theory dissolves the claim that elite lawyers possess a special capacity to see into the constitution’s substance.
Three continental schools converged on Kelsen’s exclusion, and the three map onto three elite strategies visible today. Friedrich reconstructed the constitution substantively, arguing the order underneath the text required scholarly interpretation. Waldemar Gurian, writing from Chicago to block the Kelsen appointment there, denounced him as representing “the empty logicism and relativism” responsible for the breakdown of European civilization. Gurian’s Catholic framework blamed Nazism on spiritual vacuum, which meant blaming it on any legal philosophy refusing metaphysical content. Leo Strauss, hired at Chicago on the spot at the highest salary after a short interview, assimilated Kelsenian relativism to historicism and treated relativistic tolerance as a seminary of intolerance. Three schools, three lines of attack, one practical conclusion. Kelsen must be kept out.
The three streams run through American legal thought to the present. Friedrich’s substantive-constitutional-order move became the liberal legal academy’s standard operating procedure. Balkin is its current leading operator. Ronald Dworkin was its sharpest theorist. Cass Sunstein, Laurence Tribe, Reva Siegel, and Akhil Amar work in the same tradition. Each insists constitutional meaning requires scholarly mediation because the text alone cannot produce the outcomes sought. Each draws normative conclusions from the constitutional order rather than from the constitutional text.
Gurian’s stream runs through contemporary Catholic integralism. Adrian Vermeule’s common-good constitutionalism and Patrick Deneen’s critique of liberalism both echo Gurian’s diagnosis. Liberal democracy is a spiritual vacuum; relativism leads to civilizational breakdown; the remedy is substantive moral content drawn from natural law or ecclesiastical tradition. The vocabulary has been updated. The structure of the move is Gurian’s.
Strauss’s stream runs through the conservative legal intelligentsia and its esoteric pedagogy. Federalist Society rituals, the clerkship pipeline, Hillsdale’s program, and the Claremont Institute all operate on the Straussian distinction between exoteric teaching for the public and esoteric teaching for initiates. The exoteric teaching is originalism, constraint, fidelity to text. The esoteric teaching, absorbed through the apprenticeship structure, is that constitutional meaning serves the conservative movement’s policy goals. Three streams in 1940, three strategies today. The architecture is recognizable across eighty years.
The elite-versus-mass teaching split Kennedy described, esoteric truth for insiders and exoteric myth for the public, is the structure Strauss theorized in his readings of ancient political philosophy. Strauss arrived at Chicago because his opposition to Kelsenian relativism made him useful to the anti-Kelsen coalition. The liberal academy whose relativism he criticized proceeded to build, in institutional form, the exoteric-esoteric structure he had described in texts. Strauss might have recognized the structure. He might have disputed the content it serves.
Balkin’s relation to Critical Legal Studies reveals his specific coalition function. Balkin does the CLS work while denying the CLS diagnosis. He uses the indeterminacy Duncan Kennedy exposed, accepts that construction is the terrain where outcomes are produced, then wraps the apparatus in the language of constitutional fidelity. Kennedy is too honest to be institutionally useful. Balkin is useful because he is less candid, because he does the coalition-maintenance work Kennedy refused. The liberal legal establishment cannot rest comfortably with Kennedy’s exposure. It needs Balkin’s reconciliation. Balkin has the Information Society Project, casebook contributions, Balkinization, and commission seats. Kennedy has retirement and a reputation for brilliance. The institutional infrastructure flows to the man who protects the legitimacy story.
Kennedy and Balkin both know the law is indeterminate, that elite lawyers operate as policymakers, that the rule-of-law story is a legitimating fiction for outsiders. Kennedy says it. Balkin conceals it behind framework originalism. The concealment is the service Balkin provides to his coalition.
The split between insider and outsider reproduces through pedagogical sorting. Students who internalize law as policy-making become the elite actors: clerks, professors, appellate litigators, eventually judges. Students who internalize law as rule-following become transactional lawyers, compliance officers, lower-court litigators. The sorting happens in first-year classrooms. The professor walks through a case and asks what the holding is, then asks how the holding could be read narrowly or broadly, then pushes students to generate competing arguments reaching opposite outcomes from the same materials. Students who move between frames go to the elite track. Students who keep asking what the rule is get sorted out.
The hierarchy reproduces through pedagogical selection, not through doctrinal content. Pinsof’s alliance theory operating on an eighteen-year-old. The student who can see through the rule-of-law story and still perform fidelity to it is the student who will be promoted. The student who takes rules seriously, or the student who rejects the system, will not be.
David Kennedy’s formulation captures what framework originalism delivers. The legal expert is the man who knows how to deploy available materials to support a chosen position, not the man who finds the rule. That sentence describes Balkin’s scholarly practice. It also explains why Balkin’s work reads as scholarship to Balkin’s coalition and as sophistry to outsiders. Both groups are correct. It is scholarship by the standards of the coalition and sophistry by the standards Kelsen might have applied.
Kelsen moved the questions of values to the people, de-ideologizing law and then democracy. His successors re-ideologized both. The re-ideologization is the project of modern American constitutional theory, and Balkin is its current leading operator.
Pinsof’s alliance theory fits the sequence. Harvard’s faculty relied on the jurisdictional claim for their status, income, and protection. The claim required beliefs that marked coalition membership. Accepting Kelsen might have forced the faculty to give up the thing that made Harvard Law different from a state school or a trade school. The denunciation of his relativism and empty logicism was the coalition expressing, in moral vocabulary, its defense of those stakes.
The elite legal scholar carries a vision of himself as the man who translates political life into binding order, saving the republic from its own incapacity to govern. Kelsen threatened that hero system. He said the people, through procedures, can govern themselves without a priestly class. The priesthood could not accept a doctrine that made the priesthood unnecessary.
The Kantian vision of justice based on reason cannot manage ideological pluralism. The Habermasian and Schmittian paths both fail. Kelsen offers a third way: compromise within legal procedures, democracy as the management of disagreement rather than the philosophical resolution of it. The American legal academy cannot absorb this. Balkin’s framework, Dworkin’s moral reading, Sunstein’s minimalism, and every other elite constitutional theory require the premise Kelsen denied. They require the scholar possess a method superior to the legal procedures. Without that premise the legal academy reduces to a professional school, not the holding company of American political meaning.
What Kennedy told his colleagues, Friedrich taught his students, Fuller put into the Law School’s curriculum, and Balkin writes in his articles. The coalition functions as designed. Turner’s paper shows Kelsen was there, and they had to throw him out.