Memory and Authority
The Uses of History in Constitutional Interpretation
Imprint: Yale University Press
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 phenomenon: 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.
“At a moment when the Supreme Court is playing fast and loose with its notions of the nation’s ‘history and traditions,’ Jack Balkin provides a much-needed, nuanced, and perceptive analysis of how lawyers, scholars, and informed citizens should think about historical interpretations of the Constitution.”—Jack Rakove, author of Beyond Belief, Beyond Conscience: The Radical Significance of the Free Exercise of Religion
“Lawyers and historians have long mistrusted each other. In this remarkable book, one of our most brilliant constitutional theorists blazes a path towards a more satisfying coexistence by reframing the many ways history is deployed in the creation of constitutional claims. Bravo!”—Laura Kalman, Distinguished Research Professor of History, University of California, Santa Barbara
“History does not belong only to historians. Lawyers and judges often invoke history to justify arguments they wish to make. Memory and Authority is a brilliant meditation on how this process has worked in the past, and should work. This timely intervention is perfect for our moment, as we consider the future of our democracy and the rule of law.”—Annette Gordon-Reed, Carl M. Loeb University Professor, Harvard University
“American lawyers and judges have long turned to the historical past for guidance and authoritative answers, but never more so than in recent years. Jack Balkin’s expert navigation of the complex and contested terrain where law and history intersect is essential reading for anybody who cares about the nation’s constitutional practice.”—Jonathan Gienapp, author of The Second Creation: Fixing the American Constitution in the Founding Era