What’s Left of Originalism? On Jack M. Balkin’s “Memory and Authority”

MANY PEOPLE WHO make constitutional arguments literally don’t know what they are doing. They think they are engaged in a kind of logical inference, drawing inescapable conclusions from indisputable premises. Actually, they are practicing rhetoric, the construction of persuasive argument about matters that are uncertain and contestable. As Chaïm Perelman and L. Olbrechts-Tyteca observe in The New Rhetoric: A Treatise on Argumentation (1958),

The very nature of deliberation and argumentation is opposed to necessity and self-evidence, since no one deliberates where the solution is necessary or argues against what is self-evident. The domain of argumentation is that of the credible, the plausible, the probable, to the degree that the latter eludes the certainty of calculations.

This is not to deny that there are better and worse arguments in constitutional law, or that the aim of constitutional discourse is to find the right answer. It is to say that what distinguishes constitutional answers is not the soundness of their deductions, but the persuasiveness of their arguments.

Jack M. Balkin’s Memory and Authority: The Uses of History in Constitutional Interpretation (2024) is really two books. Its first task is corrective: refuting the so-called originalists who purport to have found a way to do constitutional law by deduction. He shows that they keep reaching for the techniques of rhetoric, even though their official story dictates that they must never do so. The book’s second—and primary—task is to map the various ways in which history matters for constitutional argument, cataloging the techniques of argumentation that persuade audiences in American constitutional law and showing how the citation of history is a useful tool in constructing those arguments.

Constitutional interpretation draws on a variety of sources: text, structure, purpose, consequences, judicial precedent, political convention, custom and lived experience, natural law or natural rights, the American ethos, tradition, and honored authority. History is relevant to each in a different way. For instance, the values and examples of cultural heroes like George Washington and Martin Luther King Jr. are sometimes invoked to support one’s reading of the Constitution. History is also sometimes used in a negative way, by citing past injustices that the Constitution aims to transcend. Arguments about collective memory are offered to show what our law should be understood to be today. This is the best account we have of the role of history in constitutional law.

The rhetorician imagines an audience open to persuasion; he tells his listeners who they are. Balkin writes that arguments from ethos and tradition, for example, “assume that both the speaker and the audience identify with a common tradition, that the identities of both speaker and audience are partly constituted by that tradition, and therefore that both speaker and audience wish to continue to be true to it.” Appeals to the handiwork of the framers of the Constitution persuade because we in some way identify with them and feel that their accomplishments are ours.

So rhetoric is a morally fraught business. It constructs a collective self.

This enterprise is necessarily historical, because any coherent self persists in time. Balkin defines “collective memory” as “a set of stories, icons, symbols, and events that help constitute members of a social group as a group and that help constitute the group’s identity and its sense of shared values.” Put another way, “the past is constitutive of our world and what our world means to us.” Any constitutional narrative will describe a national ethos that is embodied in a tradition. It will also be exclusionary: “[A]rguments from ethos and tradition pick history’s winners and losers, regardless of how these people understood themselves or were understood by others in their own day.”

Historical writing always reflects the concerns of the present generation. It is in historical inquiry in general, not just law, that “people’s normative judgments affect how they characterize the meaning of the past, what they select from the past, and what they find relevant in the past.” Put another way, our “theoretical and practical commitments shape which facts are relevant and important, and how and why they are relevant and important.”

Law often involves circumstances not considered when the original text was laid down: “Legal argument always takes some parts of the past—texts, precedents, political ideas, and legal concepts—out of their original historical situation and attempts to apply them in the present.” The fundamental difference between historical scholarship and law is that the latter is prescriptive:

[Lawyers] seek to infer, from an incomplete historical record reflecting a different historical context, how the past would bear on present-day problems. They complete arguments that may never have been completed; they draw inferences and apply insights that may never have been drawn or applied by people living in the past. This act of extension in pursuit of authority is always creative.

That’s what is denied by an originalism that purports to derive rules of law deductively from ancient sources, in a way that is unresponsive to contemporary concerns—“to leverage merely persuasive authority into mandatory authority, and appeals to the past into commands from the past.” Originalist arguments gain their rhetorical power from “appeals to [national] ethos, tradition, and honored authority.” For each of the sources of law—text, purpose, etc.—“there is a corresponding kind of originalist argument, which asserts that the founders, framers, or adopters have special insight or that the events leading up to or contemporaneous with adoption have a special status.” This strategy will work only if “we can plausibly accept the values of the framers and adopters as our own or can somehow recharacterize these values (for example, at a high level of generality) so that we can plausibly accept these values as our own.”

In order for law to be ours, its meaning can’t be too inflexible. A reading of our Constitution, which is “among the most difficult to amend in the world,” that forecloses too many political choices “will exacerbate the democratic deficit of a long-lived constitution and will undermine democratic legitimacy as time goes on.”

Balkin’s own variety of originalism, developed in his earlier book, Living Originalism (2011), argues that our Constitution happens to be a flexible one: it offers a framework whose details are left to be worked out by subsequent generations, and so is designedly adaptable to present concerns. American judges and lawyers (including self-identified originalists) know this but don’t always admit it. Originalism matters, but it is only one of many sources of constitutional law: “If originalist analyses generated binding legal obligations rather than resources for constitutional construction, lawyers would always cite them as their most powerful legal arguments, and judges would never ignore them.” In practice, however, “American judges employ originalism selectively and opportunistically.”

One can persuade without lying. Rhetoric at its best is the enterprise of showing this audience what is true and good. But if one takes one’s task to be to demonstrate that the original meaning of the Constitution unambiguously dictates one’s present political program, as a matter of logic rather than persuasion, the temptation to distort the historical record will be powerful. Originalism can easily degenerate into “historical ventriloquism.”

The ethical character of rhetoric and its flexibility over time form a single package. Law must appeal to us here and now. Constitutional law does not exist in order to administer painful lessons on the limits of human foresight. The framers never met us and couldn’t know us, and so our inheritance, if it is to have any hold on us, must be capable of being construed in a way that is responsive to our concerns. That is why, as Balkin has observed, mobilized social movements, invoking their own interpretations of the Constitution, have played an important role in determining which specification will ultimately prevail.

Balkin’s tone is consistently measured and patient, and this sometimes leads him to be too gentle when he takes up the abuse of history by today’s Supreme Court. For instance, in Dobbs v. Jackson Women’s Health Organization (2022), which overturned Roe v. Wade (1973) and permitted states to ban abortion, Justice Samuel Alito’s majority opinion claimed that there was “an unbroken tradition of prohibiting abortion on pain of criminal punishment persist[ing] from the earliest days of the common law until 1973 [when Roe was decided].” Balkin responds that the common law tradition to which Alito points, which did not outlaw early abortion, “might suggest that there actually was a common-law tradition of not interfering with women’s decision to have an abortion before quickening.” (Quickening, the point at which fetal motion was detectable, might occur as late as the 25th week of pregnancy.) The phrase “might suggest” is a gross understatement. Here is the first sentence of the principal history of American abortion regulation, James C. Mohr’s Abortion in America: The Origins and Evolution of National Policy (1978): “In 1800 no jurisdiction in the United States had enacted any statutes whatsoever on the subject of abortion; most forms of abortion were not illegal and those American women who wished to practice abortion did so.” The “unbroken tradition” that Dobbs cites is pure fabrication.

Or consider New York State Rifle & Pistol Association, Inc. v. Bruen (2022), in which Justice Clarence Thomas, writing for the court, holds that gun regulations, such as a ban on carrying firearms in public, are void unless government can “identify a well-established and representative historical analogue.” The court declares that when a law addresses a “general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.” The evidentiary inference is beyond fallacious. It is crazy.

At any given time, an infinite number of laws are not enacted. The question of why they are not enacted is an incoherent question. Just as the number of non-enacted laws is infinite, so is the number of reasons why the legislature decides not to enact them, starting with the obvious possibility that no one thought of them. Congress has never required that the Capitol building be painted with big red polka dots. This is not evidence that it thought such a decorative choice would be unconstitutional.

Balkin, rather than challenging this bizarre test for constitutionality, focuses on the fact that it does not suffice to get the court where it wants to go. Amicus briefs by historians showed “considerable evidence of regulation of carriage of weapons in England, in the colonial period, in the early republic, and especially in the years surrounding Reconstruction.” Thomas “bobs and weaves to avoid or recharacterize this evidence, so that he can produce a story in which regulation of carriage in public was rare or exceptional.” But, once more, Balkin doesn’t pause to notice how absurd the entire project is.

Conservative originalists’ denial about what they are doing creates opportunities for liberals and progressives. In the picture that Balkin draws, originalists are living in a kind of dreamworld, constantly making moves that, according to their own official story, are impermissible or irrelevant. For example, there has been a cottage industry of originalist theorizing aiming to show that Brown v. Board of Education (1954) is derivable from originalist premises, even though the Fourteenth Amendment probably would not have been enacted if it had generally been understood to mandate that result. More generally, “conservative originalists have to continually retrofit their theories of original meaning to make sure that they can accommodate canonical precedents, practices, and results.” Their arguments also just happen to coincide, in nearly every detail, with the agenda of today’s Republican Party. Balkin is right: “Originalism is the living constitutionalism of movement conservatives.”

A competent lawyer knows how to use all the tools that are at her disposal. That’s why it’s such a mistake for the Left to abjure originalist arguments. Balkin writes: “Quite apart from the demands of litigation, scholars, advocates, and political actors should regularly make originalist arguments because these arguments draw on the normative power of the nation’s cultural memory.” Conservative originalism has persuaded many precisely because it “has given people a way to connect their vision of the world to the authority of the Constitution, and to articulate their political objections in terms of fidelity to the Constitution.” Liberals and progressives should not let conservatives appropriate this kind of argument without challenge. Other narratives, based on different accounts of the past, are possible. As we just saw, conservative originalism sometimes misrepresents and distorts the past, and this needs to be called out. (The task of exposing such misrepresentation, Balkin thinks, is one in which historians have a comparative advantage over lawyers.) The fact that your opponents are lying about history is evidence that history can be your friend. Balkin writes: “Refusing to claim the past for oneself means accepting other people’s versions. Those who will not deign to speak in the name of tradition and cultural memory will have tradition and cultural memory deployed against them.”

The biggest attraction of Balkin’s vision is that the past is enabling rather than constraining. It enables us to construct a world we can live in. One shouldn’t lie about history, but that constraint leaves a lot open. History is constraining in the same way that an artist is constrained by the properties of paint and canvas. It is because those substances are manipulable that we can reasonably hope to create a portrait in which we can recognize ourselves.

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Featured image: Paul Nash. Coronilla, 1925. Museum of New Zealand Te Papa Tongarewa. Gift of Rex Nan Kivell, 1953. Te Papa (1953-0003-230). CC0, tepapa.govt.nz. Accessed June 25, 2023.