Memory and Authority: The Uses of History in Constitutional Interpretation

by Jack M. Balkin

From one of the nation’s preeminent constitutional scholars, a sweeping rethinking of the uses of history in constitutional interpretation
 
Fights over history are at the heart of most important constitutional disputes in America. The Supreme Court’s current embrace of originalism is only the most recent example of how lawyers and judges try to use history to establish authority for their positions. Jack M. Balkin argues that fights over constitutional interpretation are often fights over collective memory. Lawyers and judges construct—and erase—memory to lend authority to their present-day views; they make the past speak their values so they can then claim to follow it. The seemingly opposed camps of originalism and living constitutionalism are actually mirror images of a single how lawyers use history to adapt an ancient constitution to a constantly changing world.
 
Balkin shows how lawyers and judges channel history through standard forms of legal argument that shape how they use history and even what they see in history. He explains how lawyers and judges invoke history selectively to construct authority for their claims and undermine the authority of opposing views. And he elucidates the perpetual quarrel between historians and lawyers, showing how the two can best join issue in legal disputes. This book is a sweeping rethinking of the uses of history in constitutional interpretation.

Genres: Nonfiction, Law, Politics

384 pages, Paperback

Published February 27, 2024

Reviews

[Andrew Z · Rating 4 out of 5]

Balkin is incredibly skilled at showing the ways in which originalists may be particularly vulnerable to historical criticism. My hope is that this work creates an avenue of dialogue between lawyers and historians in ways that are fruitful to both disciplines while moving debates forward.

All that said, Balkin is not afraid to “show his cards” as an advocate for a more expansive (liberal?) construction-based originalism in this book, and he has no problem holding his intellectual foes’ feet to the fire. In so doing, I think he reveals his greatest originalist competition: Mike Rappaport, Randy Barnett, Steve Sachs, and Will Baude. The latter two in particular seem to have anticipated Balkin’s concerns the best, both by providing an alternative account as to the rootedness of originalist argument to our legal/political tradition and by generating somewhat sensible lines of demarcation between law and history that other originalists may not bother with.

I’m not totally persuaded that lawyers are incapable of engaging in a specific kind of legal-historical inquiry without opening the door to further critique by historians. I take Balkin’s argument that lawyers in practice will attempt to dig up the most persuasive historical arguments to “win.” But I also think lawyers are well aware of the strengths and weaknesses of their own arguments. If an opponent litigator has a stronger historical argument than I do, it’s possible that I’ll try to contest her historical account with an even better historical account. But it’s also possible I’ll focus on other parts of my argument that rely on precedent, plain meaning of the text, consequences, etc. that should be weighed ahead of a historical argument. In that way, I question whether it is inevitable that lawyers will always respond with historical evidence in kind in such a way that drags historians into the fray.

I can’t help but feel that, at certain moments, Balkin slightly overplays his hand. There’s a big question about how substantive Balkin’s originalism ends up being, and I wonder if there might be some sort of middle-ground between Balkin’s “thin originalism” and the “thick originalism” he criticizes. All that said, however, Balkin’s revised modalities of argument make the book worth a read on its own, and his account of the function of memory in historical narratives seems obviously correct. As previously stated, he also seriously engages recent originalist literature in a way that shows he is taking it seriously, which is particularly welcome.

At the end of the day, I imagine people will read this book and simply filter it through their priors about constitutional interpretation. But I think Balkin mounts a serious critique to “thick originalism” here, one that should not be ignored by either side of the methodological debate.

[Jacek · Rating 5 out of 5]

A powerful, challenging and thought-provoking book about how history is and should be used in constitutional law.