Document Type
Symposium Participant
Publication Date
2025
Publication Information
173 U. Pa. L. Rev. 1995 (2025).
Abstract
From the Article
Jack Balkin’s Memory and Authority powerfully describes the kaleidoscopic quality of historical arguments in constitutional law. The book also moves easily between description and prescription. This Essay explores whether it moves too easily from one to the other. I consider whether the book’s analysis is so keen to capture our actual practices that it leaves itself too few resources for evaluating them—whether its account of history’s uses, made expansive by a zeal to fit how lawyers actually reason, crowds out any robust account of how they ought not to reason. While I am inclined to think so, my main purpose in this short piece is just to follow this line of objections far enough to lay bare the competing visions of a constitution’s purpose and function that animate Balkin’s debate with those he calls “thick originalists”—rival visions of which we catch only in glimpses in the book’s text.
Part I describes how Memory and Authority builds out Balkin’s previously defended “living originalist”1 theory of constitutional decision making with an extended account of history’s many roles. It also contrasts that account with those of Balkin’s thick-originalist opponents. Part II mounts a series of increasingly foundational objections to Balkin’s view, and Part III explores ever deeper answers on his behalf, cutting to the root of a subtle debate about what a morally polarized people can ask a constitution to do. It will emerge that Balkin’s particular brand of originalism makes it nearly impossible to justify judicial review unless one takes a view of constitutional law’s function that may soon prove—if it has not already proven—tragically optimistic.
Recommended Citation
Sherif Girgis,
The Abuses of History in Constitutional Interpretation,
173 U. Pa. L. Rev. 1995 (2025)..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/1717
Comments
Symposium on JACK BALKIN, MEMORY AND AUTHORITY: THE USES OF HISTORY IN CONSTITUTIONAL INTERPRETATION (2024).