Jack Balkin’s new book, Memory and Authority, opens with an account of the “modalities” of historical argument that lawyers and judges may employ in interpreting the Constitution. These include arguments based on text, constitutional structure, and purpose, but also factors like “national ethos,” “political tradition,” and “honored authority.” It soon emerges that Balkin’s underlying goal in listing these approaches, as an exponent of a doctrine he calls “living originalism” (alternatively, “framework originalism”), is to undermine the claim that the Constitutional text, read as a reflection of the intentions of its authors and ratifiers, has any special status as compared with other forms of “historical” argumentation.

Balkin portrays living originalism as a compromise between originalism and “living constitutionalism,” which advocates reinterpreting the Constitution to accommodate changing political and moral outlooks, as identified especially by legal scholars and judges. He portrays originalism and living constitutionalism as “two sides of the same coin,” in that “many American movement conservatives” (who profess to follow the guidance of the Constitution’s authors) are really no more interested in “preserv[ing] the status quo” than their opponents, and so (on Balkin’s account) are just as inclined to mold the text to fit their partisan aims as are living constitutionalists. By contrast, “framework originalism” views the Constitution as providing only a basic skeleton on which “successive generations build” over time, thus “making politics possible,” through a process of “construction” as distinguished from mere “interpretation.”

From the outset, Balkin’s enterprise is plagued by the following difficulty: granted that the Constitution provides a framework within which democratic politics occurs, why does it follow that the meaning of our founding document must change, and who bears primary responsibility for determining the direction of such changes? While the meaning of particular Constitutional clauses is always in principle open to debate (that’s why we have courts to resolve such conflicts), should the aim of such debate be to ascertain the text’s meaning, as applied to varying circumstances, or rather to ensure that it keeps up with the times?

By presenting textual, structural, and purposive arguments as just a few options among the various possible “historical” modes of interpretation, Balkin aims to open the text’s meaning. Now he can incorporate the views of important political or cultural figures, or social movements, who had no role in the document’s design or ratification, either because they were excluded from political participation (women, slaves, indigenous people) or simply because they came along well after 1787 (immigrants; Wobblies). But Balkin provides no objective guidelines for ascertaining which views should therefore be read into our ruling document. His illustrations are often manifestly partisan. For instance, he explains that “the Constitution failed to guarantee abortion rights” because “traditionally the United States was committed to keeping women from having very many rights,” as if we should take it for granted that treating women justly entails ensuring the right to have abortions, contrary to the deeply held beliefs of pro-lifers of both sexes.

Balkin similarly denies, without argument, the claim that a fair reading of the First Amendment, based on its text, can justify guaranteeing the right of corporations, no less than of private individuals, to make political contributions. And he puts Lochner v. New York (1905), which ruled a New York statute restricting the hours of bakers unconstitutional as a violation of the due-process rights guaranteed by the Fourteenth Amendment, on the same “anticanonical” level as Dred Scott—that is, one that cannot even be taken seriously. This disregards the fact that the New York law served to favor large commercial bakeries at the expense of small, family-owned ones, whose owners faced imprisonment for violating its restrictions. He offhandedly denies that James Madison could have “comprehended” today’s administrative state. (Madison would have been well aware of the elaborate administrative apparatus established by Louis XIV, without approving of it.) Balkin wishes to interpret the Constitution as providing a “usable” past that is admirable “by today’s standards”: but who determines what those standards are?

To make his case against originalism, Balkin blurs the distinction between two objections to reading the Constitutional text on the basis of its original meaning. First, he asserts the difficulty of ascertaining the text’s meaning, given the variety in how different groups may have used its words at the time that the 1787 text, or the post-Civil War amendments, were adopted. But Balkin greatly exaggerates this difficulty, given the fact that American lawyers and judges, following the common-law tradition, historically endeavored to follow William Blackstone’s prescriptions for interpreting a statute: inferring “the will of the legislator” by attending to “the words, the context, the subject matter, the effects and consequence, or the spirit of the reason of the law,” with the words being “understood in their usual and most known signification” judging from “their general and popular use” at the time the statute was enacted.

Contrary to Balkin, while there was always room for lawyers to debate these issues, it was never thought, as Balkin maintains, that their resolution called for detailed research by professional historians. In fact, the very term “originalism” did not exist (as Balkin acknowledges) until its invention by anti-originalist law professor Paul Brest in 1980. This is so because judges and lawyers until the era of the Warren and Burger Courts—so-called “legal realists” aside—largely took it for granted that they were obliged to follow what they took to be the text’s meaning, in accordance with Blackstone’s rules. The rules are common-sensical, and while they of course leave room for debate in their application (are libels of a public figure protected by the First Amendment? How far does executive privilege extend?), they clearly rule out fabricated interpretations, such as the Court’s construction of a Constitutional “right to privacy” in Griswold v. Connecticut (1965) supposedly derived from “penumbras” formed by “emanations” from various amendments. (That sounds more like the language of medieval Scholasticism.) Constitutional interpreters did not depend, as Balkin reports some now do, on an academic method called “corpus linguistics,” to uncover the details of language usage at the time of the Founding—as if the Constitution had been composed in Shakespearean English.

But Balkin’s real objection to originalism isn’t that the Constitutional text is too ambiguous to be meaningful except in its broadest outlines. Rather, his concern is the familiar one of subjecting ourselves to the rule of dead white males, instead of giving voice to the “values” of today and the “voices” of groups who weren’t represented at the time the text was adopted. His view of the Constitution is far from the 1878 judgment of William Gladstone that it was “the most wonderful work ever struck off … by the brain and purpose of man.”

On the contrary: according to Balkin, our political system “is suffering from an advanced case of ‘constitutional rot,’” stemming from the fact that “the 1787 Constitution was designed for a different world and a different country” from what developed by the twentieth century. It was then that (some) people came to recognize that the Constitution “was not designed to accommodate a global superpower that was also a modern regulatory and welfare state.” Whereas progressive advocates of a living Constitution recognized “that the Constitution must adapt to changing times,” and accepted the need to “abando[n] the values and assumptions of the past,” their originalist opponents sought to “regain the past” by stubbornly “pledg[ing] faith in the wisdom of the framers and the laws that they bequeathed to us,” and by “return[ing] to the place from which we strayed and restor[ing]” our “lost” Constitution.

But Balkin too easily assumes that the Constitution, as written, cannot accommodate either America’s becoming a world power (a future surely anticipated by Alexander Hamilton, for one) or provide adequate guidance for the satisfactory operation of our “regulatory and welfare state.” Both contemporary mainstream liberals and conservatives have stressed the importance of the Constitution’s protections of individual rights amidst present threats to national security. (Consider the Congressional debates that led to the reauthorization of the FISA system, after adding stronger protections against FBI abuses.) The vast expansion of the regulatory state, in the form of independent agencies that stretch the limits of their already broad delegated authority, certainly justifies closer judicial scrutiny. And while a large scholarly and journalistic literature questions the efficacy and the cost of the contemporary American welfare state, recognition of the vulnerability of the judiciary to intrusion by the political branches (such as “court packing”) guarantees that no court will undertake cutting it back to what it was in Tocqueville’s time.

While the Founders’ Constitutional project needed to be completed by the post-Civil War amendments, as well as the nineteenth, in other respects our country has flourished under it, thanks in part to the early acceptance of John Marshall’s sage observation in McCulloch v. Maryland that “we must never forget that it is a Constitution that we are interpreting, intended to endure for ages to come.” Marshall was arguing for a broad interpretation of Congress’s powers under the “necessary and proper” clause, without which the Constitution might well otherwise have soon been judged to be outdated. He was not advocating a “loose” interpretation of the document by judges, which would enable them (as in Roe v. Wade) to invent new “rights” unauthorized by the national electorate.

Balkin, however, expresses frustration over the fact that America’s “constitutional culture” takes originalist arguments more seriously than “most other constitutional cultures” do. (The American people’s greater reverence for our founding document might have something to do with its being much older than that of any other nation, along with a widespread sense that that document has better secured the people’s rights, liberties, and general prosperity than any of its counterparts.)

It is telling that, in his endeavor to weaken Americans’ reverence for the Constitution and its authors, Balkin misreads Frederick Douglass’s deservedly famous 1852 Fourth of July Oration, which asked what meaning that document had to the country’s slaves, as an instance of the “long history of rhetoric critical of the founders that exists alongside the dominant strains of founder reverence in American political culture.” In that address, far from denouncing the founders’ Constitution, Douglass broke with Abolitionists like William Lloyd Garrison by celebrating it as “a glorious Liberty document.” As Lincoln was to do, Douglass made much of the fact that the Framers avoided using the word “slave” anywhere in their handiwork, employing circumlocutions such as “person[s] held to labor” and “other persons” so that, when slavery was eventually abolished, as most of them earnestly hoped, no evidence would remain to posterity that involuntary servitude had ever existed in this country. While deploring the failure of subsequent generations to achieve abolition, Douglass appealed to the very ideals embedded in the Constitution to justify it.

But Balkin, as he makes clear in his last chapter, seeks a different sort of Constitution, one that will supply what he calls a “usable past.” That is, aside from preserving the bare-bones structure of our governmental system (at least until it is amended), he wants judges, guided by scholars like him, to feel free to interpret it on the basis of their views of “the people’s “ethos,” “customs and lived experience,” “national ethos” and “widely honored values,” “political tradition,” and “honored authority” (Balkin’s emphases). Far from being limited to “adoption history,” the historical approach Balkin favors would “rang[e] over the whole of American history and, indeed, the history of the world.” To make the past truly usable, he exhorts us not to be “wasteful,” but to “be willing to use as much of the past as possible and for as many purposes as we can.”

It goes without saying that in a democratic republic like ours, the policies pursued by elected and appointed officials will inevitably be strongly influenced by each of the factors that Balkin lists: how could they not? But Balkin never explains why it should be the job of judges to lay down the rules by which we are governed, to the extent that their decisions are severed from, or indeed directly contradict, the Constitutional text. In its wrongly denounced Dobbs decision, the Supreme Court simply restored decisions about abortion regulation to the place the Constitution left them: elected state and local governments. Similarly, in Fair Admissions v. Harvard, the Court acted on the basis of the unambiguous text of both the Fourteenth Amendment and the 1964 Civil Rights Act, which forbid government and (in the case of the 1964 Act) private discrimination against individuals on the basis of race. As a progressive, Balkin simply doesn’t like those rulings because they contradict his “values.”

Far from reflecting America’s national ethos or tradition of deliberative, democratic government, Balkin’s historical approach is one that would supply judges, and the scholars who guide them, with what is in principle an arbitrary power to remake our nation. Far from “making politics possible,” it would justify allocating unprecedented political power, unconstrained by law or Constitution, to unaccountable jurists. It is troubling to realize that this is what future lawyers, statesmen, and judges are being taught in our most prestigious law schools.