Jack M. Balkin’s Memory and Authority deserves praise for advocating that a natural relationship exists between history and constitutional interpretation. He is right to point out that both should rely upon one another more than they do; it is a shame that each group looks sideways at the other. Much of this suspicion emerged with the rise of professional history a century ago, with its disciplinary focus on context, causality, and change over time. Instead, what should be a beneficial kinship is fraught with recriminations—many of which Balkin documents—as each side frequently accused the other of refusing to understand its methodology. Lawyers claim that historians fail to grasp how legal interpretation operates and how the purpose of lawyers is to gather material that “prescribes the correct interpretation of law.” They accuse historians of “history-office law.” Historians lament that lawyers’ appeals to history often take words or actions out of context and demonstrate a lack of appreciation for the complexity of the past. Historians frequently term lawyers’ use of history as “law-office history.” 

Tensions between the two have only increased with the rise of originalism, particularly Public Meaning Originalism (PMO), which purports to understand constitutional terms as an ordinary American—or in some cases, a legally educated American—would have at the time of the founding. As PMO’s influence has grown to the point that even liberal justices must at least genuflect towards originalism, the lamentations of historians only increase. Anytime the Supreme Court’s majority opinion in a significant constitutional case invokes PMO, historians will chastise the Court’s decision as “bad” history and, thus, bad law. Recently, a cadre of historians formed a “Historians Council” through the Brennan Center out of frustration with how the “Supreme Court has misused and mischaracterized history to justify rulings that upend American values and roll back rights.” These historians submit amicus briefs to “set the record straight” and persuade the Court on the “proper” understanding of history. The fact that all those interpretations tend to favor more contemporary liberal political outcomes is, of course, just a coincidence. 

While Balkin’s History and Authority is an attempt to cool the contention between law and history, his sympathies rest with the critics of PMO. Balkin distinguishes two forms of originalism, “thick” and “thin.” The thick version of PMO is the real target of his work, and it receives sustained criticism throughout. Balkin claims that supporters of Thick PMO fail to realize how their methodology “is a servant that needs a particular kind of master.” Thick PMO must construct that master from a past that is always “refracted through theoretical choices, some of which may be plausible to other lawyers and some of which may be highly controversial.” The result is that Thick PMO, instead of being a serious attempt to use history, simply “disguises ideological predispositions behind a cloud of learned citations,” claiming as “mandatory” that which “is merely persuasive.” Despite their historical claim, Balkin continues, Thick PMO practitioners are “cafeteria originalists” because they pick and choose which parts of the past they wish to use and “discard” the rest.

Thin Originalism, or what he also calls “Framework Originalism” or “Living Originalism” (LO), on the other hand, is Balkin’s preferred methodology. It does what he claims Thick PMO cannot do: distinguish between constitutional interpretation and construction. Constitutional interpretation centers on understanding the “original communicative content of the Constitution’s words and phrases,” which includes everything from the semantic meaning of the Constitution’s actual words and phrases to legal terms of art. The methodology is similar, but not identical to PMOs. Balkin claims that this interpretative work must “give effect” to those meanings through the creation and application of judicial “doctrines, practices, and norms.” This process of application is what Balkin labels constitutional construction.

Balkin’s LO maintains that the Constitution contains “hardwired rules” that are easily found and explained in the text of the Constitution and the founding. These hardwired rules require “little practical judgment.” At the same time, the Constitution also contains words like “speech,” “search,” and “seizure” that often become “vague as social, political, and technological contexts change.” Hence, lawyers must build and use proper “modalities,” or “construction zones,” to understand how those terms function in the contemporary world. It is within these construction zones that living constitutionalism operates. Since the Constitution “is always an unfinished project,” it falls to “each generation, operating within the basic framework [of the Constitution],” to “construct the Constitution in their own time.” Over time, these constructions can build upon one another or be modified or rejected as new generations construct their meaning of the Constitution. This “Constitution-in-practice” respects and adheres to the Constitution’s framework, thereby rooting the law within the Constitution’s broad boundaries, but is also consistent with the idea that the application of the Constitution changes over time. To state it differently, Balkin argues that we are bound to the original meaning of the Constitution’s framework but not to its original application.

Balkin devises a hypothetical scenario to demonstrate his criticism of Thick OPM and support for LO, and that analytical choice is worthy of remark. In a work devoted to exploring how lawyers should use history in constitution interpretation, Memory and Authority is strikingly short on history. Even references to Supreme Court cases are few. Rather than engage in hypotheticals, Balkin should have explored the uses of Thick OPM in real-world cases, identified and explained the weaknesses in those cases, and shown how LO would have delivered a better opinion. 

Yet, a hypothetical is what he uses. His scenario examines the “very strong protections” of modern commercial speech and asks whether these protections are rooted in a Thick OPM reading of the First Amendment. His hypothetical practitioner of Thick OMP draws upon historical examples of colonial-era newspaper advertisements and Benjamin Franklin’s defense of the rights of printers to print such advertisements. This evidence leads his Thick OMPers to conclude that the First Amendment protects advertisements, leading to another hypothetical conclusion that the FDA could not prevent drug companies from publishing off-brand use of their medications. 

Balkin insists that the Thick OPM presented in this scenario “makes many leaps of logic.” First, the Founding era might not have conceptualized commercial speech like modern judicial doctrines today. Second, the Founding period might not have accepted the libertarian notions of individual rights that comprise contemporary understandings of the First Amendment. Third, because the late eighteenth century dealt with different legal issues and enforcements, any correlation to the Founding era’s readings of constitutional rights to our own is difficult to sustain. Indeed, “the reasons we might want to regulate advertising today may differ from those that could have existed during the Founding era.” Fourth, Americans today “must decide” just how “abstractly or broadly” to understand, express, and apply Founding-era legal principles. Finally, however abstract or broad modern Americans choose to understand and state those Founding principles, it would require us to force those eighteenth-century principles into a contemporary world inconceivable to the eighteenth-century person.

Balkin’s hypothetical does expose some potential problems of lodging constitutional authority with a selective reading of sources. The hypothetical’s real problem, however, rests on LO’s methodology. The suggestion that modern judicial doctrines might not comport with the interpretations gleaned from historical documents overlooks the elephant in the room: the language of the First Amendment. The first five words of the First Amendment reads, “Congress shall make no law.” Using Balkin’s methodology of a “hardwired” original meaning of the framework with fluid constructions of application, it is difficult to see how a command phrase like “shall make no law” is anything but hardwired into the Constitution. Thus, there is no need for judicial doctrines or construction zones because the language is not a suggestion but a command.

All of this suggests that what really bothers Balkin is not Thick PMO’s approach but its conclusions. Balkin’s argument for constitutional construction reflecting a modern world approach is a euphemism for achieving results that cannot be reached in ordinary politics. His LO, therefore, is arbitrary. If explicit prohibitions like “shall make no law,” “shall not be infringed,” or “shall not be violated” require contemporary theoretical models—zones of construction—to understand how they are to be applied, it builds the constitutional order on a house of sand. The rule of law’s knowability, stability, and predictability are melted away and replaced with the desired political outcome of what the here and now wants—what it wills. It transforms the Constitution into a relic of the past that one must pay homage to as a symbol of authority but can otherwise be ignored. Yesterday does not matter, and tomorrow is unknown, so all that matters is the here and now. That is not stability, that is not respect for what the past bequeathed us, nor is it a desire to help guide the future. It is a constitutional selfishness rooted in the power of interpreting its own limits.

To its credit, Thick PMO at least attempts to assert some connection of the Constitution to its past, and that alone makes it preferable to the pure arbitrariness of LO. Alas, it also makes poor use of history. Balkin is right that Thick PMO’s methodology too often picks and chooses from sources that fit their desired outcomes. This disconnects the theory underpinning Thick PMO from historical actors and context. The only history it employs relies upon words’ meaning as understood by a supposed everyman. This is unsatisfying and leaves Thick PMO open to criticisms from historians who might otherwise be sympathetic—however few those historians might be.

Although a vast chasm separates the methodologies of Thick PMO and LO, they do have one thing in common: judicial supremacy. It is uncommon for either side to ask if the Constitution intended for the courts to exercise that power or whether the state or federal legislature—rather than unelected federal courts—should decide the case. Both are comfortable with judicial supremacy as long as they control it. This desire to be the default judicial tool of interpretation offers another insight as to why their historical inquiries are, at best, selective. It does not ask the historical question of intention.

A historical approach that recovers intentions challenges the methodologies of both schools. It forces humility upon legal controversies because history can only provide answers based on evidence; it should not create new theories to reach a desired conclusion. It takes special care to note not only conflict and change but also causality and contingency. Lawyers engaged in this method do not need to be academic historians or concentrate on all the concerns and topics of professional historians. Since we are dealing with the law, and the Constitution in particular, this intentions approach involves lawyers who must consider issues like the political principles of the generation (rather than divining the mind of a specific founder or fictional yeoman); read primary sources beyond The Federalist; ask the question of why the Constitution’s powers exist in the first place and how the thirteen ratification debates, full of conflict over multifaceted issues, nonetheless negotiated and agreed to many common understandings to what those powers meant.

This approach also demands lawyers put aside made-up doctrines of constitutional law—its tiers of scrutiny, modalities, and construction zone—and start looking at constitutional history. Finally, it insists that the lawyer ask whether the law under question fits with the understanding of the Constitution’s intention at its ratification. This methodology applies to constitutional amendments, too. It requires the lawyer to examine the intentions of the Amendment, the “how” and “why” behind its purposes, and ask how it modified the original structure of the Constitution. Knowing these intentions leads to a clearer meaning of the Constitution’s words. It negates the need of courts to concoct schemas or theories supposedly needed to define words “reasonable” or “excessive,” which, themselves, only create more questions and controversies as to their meaning and applicability than answers. Perhaps more importantly, it strengthens the rule of law by rooting constitutional interpretation to a knowable past rather than judicial will.

While this plea to examine intentions tilts at windmills, some legal scholars engage in a methodology of recovering intention, although they do not term it as this essay has. John Phillip Reid’s work offers the best example of this historical approach to constitutional interpretation. Reid, a lawyer by training, knew that law rested on history as much as it did on meaning and theory, and he recognized that meanings and theories changed over time, creating conflict and a desire to achieve a fixed meaning to terms to avoid future disputes. Perhaps just as importantly, Reid’s work demonstrates that this type of work is not the Labyrinth that so many academic historians use to shoo away lawyers treading on their turf or threatening their political positions.

For the foreseeable future, however, the battle Balkin describes between originalists and living constitutionalists will continue anon. So, too, will our supposedly democratic political culture’s desire to have the Supreme Court settle issues that are best left inside legislative chambers.