The Balkin Way: Originalism, History, Memory, and Tradition in Constitutional Interpretation

Professor Jack Balkin's new book, "Memory and Authority: The Uses of History in Constitutional Interpretation," continues the author's longstanding efforts to merge living constitutionalism and originalism into a workable and normatively attractive theory of constitutional interpretation. In this book, Balkin supports his concept of "living or framework originalism" with a deep dive into how history, memory, and tradition should and should not be used by judges and other political actors interpreting our very old Constitution. 

As I've written here before, Balkin's overaching theory, similar to Justice Kagan's, is that when the text is clear and specific, e.g., the President has to be at least 35, constitutional intepreters must follow that command, but where the text is abstract and general, then interpreters must search for the principles underlying the text and apply them to changing circumstances. Balkin's new book is mostly devoted to that space, often called the "construction zone" by originalists, where the text and original meaning are underdeterminate and other values must guide constitutional decision-makers.

There is a lot to admire in Balkin's attempts to bring harmony to the standard originalism/living constitutionalism debates. His description of how judges use originalism, history, tradition, and memory is fascinating, provocative, and, with one exception, albeit a big one, right on the mark. 

As to originalism, Balkin makes the standard arguments that the moments of ratification do not provide enough certainty or capacity to support sound constitutional doctrine. Recreating original meaning where it either does not exist (e.g., applying the First Amendment to the internet) or where it was disputed (e.g., most hard issues such as the scope Presidential power) is in reality a practice of contemporary reconstruction, not historical analysis.

Balkin recognizes that the value of history and tradition in constitutional interpretation is completely intertwined with and should be dependent on how well they serve the present. He also has no illusions about the difficulty of acheiving a workable consensus about history and tradition. In his words:

People’s claims about [history and] tradition are likely to differ (1) because past practices are complex and not uniform, (2) because the meaning and lessons of tradition [and history] are often best described through generalization (and there is often more than one way to do this), and (3) because traditions evolve by discarding or rejecting previous elements of tradition and absorbing new ones. Traditions [and the uses of history], in short, are always breaking away from parts of themselves, glomming onto what is new, and then redescribing the changes as always having been part of the tradition, correctly understood.

Given the vagaries and manipulability of the past, Balkin argues that constitutional interpreters have no choice but to use present-day values to utilize that past. Tradition, history, and memory are all messy, and people will often see in the past what they hope for in the present. The job of lawyers, therefore, is to use the past, including connections to the founders, to make the best arguments for today. 

But, according to Balkin, the past is only usable if it is consistent with modern conditions and values. For example, throughout the book, Balkin emphasizes how originalists and others who rely extensively on tradition and history often overlook the practices and views of outsider groups such as women and people of color. In Balkin's words:

When we exclude the memory of women and minorities from our constitutional conversation, we miss out on why the Constitution and proposed amendments were important to them, what they wanted these texts to do, and what features they found wanting. The relatively small group of white men who framed and adopted these provisions understood these issues only as refracted through their own limited experiences.

Balkin calls for a pluralistic method of constitutional interpretation, including, among other things, text, structure, purpose, history, tradition, precedent, custom, and (borrowing a term coined by Philip Bobbitt) ethos, which consists of arguments that "appeal to the character of the nation and its institutions and to important, widely shared, and widely honored values of Americans and American culture."  Although other scholars have phrased the idea somewhat differently, this modality approach has been expressly adopted by folks with famous names like Tribe, Dorf, Fallon, and Griffin in addition to Bobbit and Balkin.

Balkin is realistic enough to know that We the People, not to mention judges, will disagree in most hard cases over many of these overlapping ideas but, if constitutional interpreters use the techniques he outlines in the book to decide constitutional questions, at least we have a better chance of agreeing to the rules of the game and accepting disappointing results.

There is much to admire in this fine book. Balkin demonstrates with many examples how history, tradition, and memory will usually be in the eye of the beholders and how lawyers and historians will use those sources in quite different ways. Law office history has a place in constitutional interpretation as long as judges understand the limits of those materials and are modest about their own ability to accurately recreate the past. Our memories and "their" memories will often be quite different--drawing opposing inferences from historical materials. That is where "ethos" comes in, so constitutional interpreters will and should make arguments about how this or that constitutional argument demonstrates a normatively beneficial idea for the present. In other words, the past is only as valuable as it aids us in the present.

In my view, this pluralistic account of constitutional interpretation describes exactly how judges decide constitutional cases, even those judges who self-identify as originalists. And that observation leads to my one major critique of the book. Balkin uses every rhetorical device available to him to dodge what should be the ultimate conclusion of his thesis. That unstated conclusion embraces constitutional pluralism and accepts the relevance of history, tradition, and memory to the job of applying our old Constitution to modern times, while recognizing that pre-existing theoretical commitments are much less important to judges than consequences on the ground (no matter how much judges protest in the Shakespearean sense). 

The ultimate conclusion I'm referring to, and which goes mostly unstated in Balkin's book, has been uttered by many legal scholars, including Dean Erwin Chemerinsky in his excellent Foreword to the Harvard Law Review way back in 1989 titled "The Vanishing Constitution." In this article, Chemerinsky concludes that "constitutional law now and always is about values...[t]here is nothing else." 

Those values may be influenced by history, tradition, memory, and precedent, but the values that carry the day, that win the hard constitutional cases, are, have always been, and will always be, centered around ideology, experience, and politics much more than the recreation of events occurring long ago in a distant and often illusory past. Balkin missed the chance to reinforce this reality through his persuasive, comprehensive, and often brilliant exposition of the proper and properly limited roles for history, tradition, and memory in constitutional interpretation.