Washington Lawyer - September/October 2024 - 38

WORTH READING
Memory and Authority:
The Uses of History
in Constitutional
Interpretation
Jack M. Balkin
Yale University Press, 2024
Review by Richard Blaustein
I
n his new book, Yale Law Professor
Jack Balkin brings a new
perspective to constitutional
disputes. He believes that people
employ history in constitutional
law to make arguments for or
against certain interpretations, and
disagreements are often fights
over collective memory.
" Everyone has
a stake in what is
remembered and
what is forgotten,
because memory
is a source of political
power. If
people refuse to
claim memory
and tradition for
themselves, they
will be governed
by other people's
versions, " Balkin
writes. Another consistent point he makes in
his thought-provoking book is that " history is
a resource, not a command. It is a way that we
reason with each other in the present rather
than a collection of mandates from the past. "
Balkin addresses the dominant originalist outlook
in American law today, which seeks the
original public meaning of the text of the Constitution.
Balkin prefers the perspective of " living
originalism, " often viewed in opposition to originalism.
He disagrees, writing that they are two
sides of a single coin. Living originalism appeals
to those adhering to the ethos and authority of
James Madison, Alexander Hamilton, John Jay,
and the like while also making use of inclusive
history - beyond that of the Founding Fathers
at the moment of the Constitution's adoption.
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Living originalism " can accommodate the stories
and constitutional claims of people who
were not officially part of the constitutionmaking
process or were shut out of that process
entirely, " Balkin writes. " The views of enslaved
and free Black people before the Civil
War, and of women before the Nineteenth
Amendment, are part of the dialectical tradition
of American constitutionalism. Their views
and experience can be resources for understanding
our Constitution and creating the
best constructions for our time. "
Balkin also offers a compelling distinction between
constitutional interpretation (determining
the original intent) and constitutional construction
(building doctrine and policies over time).
Both are necessary, he argues. " [T]he Constitution's
legitimacy comes from two sources, not
one, " Balkin writes. " The first source is . . . adoption
or amendment. But adoption and amendment
are infrequent, and they do not explain
most constitutional change in the United
States. The second source of the Constitution's
legitimacy comes from successive constitutional
constructions that respond, in the long run,
to the forces of democratic politics. "
Balkin adds, " The constituent or constitutionmaking
power of the people must be exercised
... continually in constitutional development,
that is to say, through constitutional construction. "
Memory
and Authority also challenges the approach
of some constitutional law professors
and advocates who have steadfast views on
originalism and dismiss historians' perspective
on a constitutional context or question. Legal
scholars might typically argue that historians do
not have the legal lens to focus on a constitutional
issue and enable resolution of a dispute.
To this Balkin responds, " Lawyers and legal
scholars who make these kind[s] of moves are
not simply stiff-arming historians; they are
also setting boundaries on how other lawyers
should use history. By defining legal reason in
this way, they seek to foreclose uses of history
that might undermine their particular interpretive
theories or might rebut arguments using
those theories. "
He further connects the work of historians to
the expanded memory that gives the Constitution
transgenerational legitimacy. " Historians
cannot be kept out of legal argument because
lawyers simply will not allow it. History is too
valuable to law's claims to authority to banish
historians, " Balkin writes.
Balkin offers a fruitful challenge, which works in
tandem with his advocacy for expansive use of
memory in constitutional argument to include
multiple perspectives from different groups
and time periods. Balkin discusses scholars like
Cass Sunstein and Frank Michelman, who at the
close of the 20th century offered " a left-liberal
version of originalism. " These legal scholars
drew on the work of historians like Bernard Bailyn
and J. G. A. Pocock, who posited that the
Founding Fathers were not only shaped by individualism,
but " also steeped in the ideology
of civic republicanism, which emphasized civic
virtue, social connections, deliberative democracy,
and the common good. "
On the other hand, many scholars dispute
these virtues. Balkin quotes law professor Mark
Tushnet averring in the William & Mary Law Review
that " civic republicanism 'unravels once
we attempt to disentangle the currently attractive
strands from the currently unattractive
ones,' " and law professor Barry Friedman arguing
in the New York University Law Review that
" [t]he very same problems that haunt originalism
also haunt republicanism. "
Yet, one might intuit that an unidealized historical
examination of civic republicanism in public
figures supports the book's main thrust for
broadening constitutional memory. For example,
it might serve as a helpful contrast at a
time when some politicians chafe at handing
over constitutional governance, regardless of
election outcomes.
Tie-ins with originalism run throughout Balkin's
book. He offers insightful observations of originalism
as a constitutional outlook that conveys
explicit historical assertions and makes implicit
claims for the nation's constitutional memory.
His most edifying message is that everyone
should think about the country's origins, and
that constitutional memory is beneficial when
it includes nondominant voices of the past and
present and welcomes historians' perspectives.
This sentence puts it eloquently: " Just as constitutional
interpretation becomes better when it
expands constitutional memory, it becomes
richer when it embraces all that history has to
offer. "
Richard Blaustein is a D.C. Bar member and freelance
journalist covering science, the environment,
and legal issues.
Washington Lawyer - September/October 2024

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