In 1971, a Yale law student working on Jane Roe’s legal team noted in an internal memo that the historical research the team relied on was flawed. Referring to a pair of law review articles that falsely claimed early American jurisprudence recognized abortion as a common-law liberty and that mid-century anti-abortion statutes were not intended to protect unborn human life, the memo nonetheless concluded:

The constitutional stakes are high for how we tell stories about the past, and Jack M. Balkin’s newest book helps us better understand why. “History matters to constitutional interpretation,” Balkin writes in Memory and Authority: The Uses of History in Constitutional Interpretation, “because people believe that history bestows authority on their arguments or, conversely, that it undermines the authority of opposing arguments. History matters in constitutional interpretation because authority matters” (3). Building on Philip Bobbitt’s early work on the different modalities of constitutional argument (Constitutional Fate, Oxford University Press, 1984), Balkin rightly notes that history is interwoven through each of the familiar forms of legal argument. Arguments about text, structure, purpose, consequences, precedent, politics, custom, natural law, ethos, tradition, and authority contain competing historical claims (22). Rather than “history” being a separate mode of constitutional argument, Balkin points out, we channel historical claims through each of the standard modalities of constitutional interpretation.

One implication is that the stories we tell about the past are often less about the past than about who wields power in the present. “Everyone has a stake in what is remembered and what is forgotten,” Balkin asserts, “because memory is a source of political power” (13). Balkin advocates for an interpretive form he calls “living originalism,” where “the past serves as a resource that we draw on in the present to forge a narrative connection between ourselves and our political traditions as we now understand them” (144). Operating within the broadly identitarian paradigm that has shaped law and history in recent years, Balkin argues that we ought to tell a different story about American constitutional history that deemphasizes the role of the white, male framers and incorporates historically marginalized voices as makers of constitutional meaning (7–8). This exercise’s laudable aim is to help all Americans see the Constitution as their rightful inheritance. While there are certainly neglected voices in the historical record who shaped our constitutional tradition, why not simply adopt the perspective that Martin Luther King, Jr., championed—that the framers’ Constitution contains a promise to all Americans? The reason, Balkin suggests, is that the tradition’s neglected voices offered “constructions of the Constitution [that] turned out to be far wiser than the dominant opinions of their day” (8).

By invoking wisdom in constitutional interpretation, Balkin points to the unavoidable choice between better and worse, noble and ignoble, wise and foolish. Lawyers rely on historians’ insights when they construct narratives, identify patterns, weigh events’ importance, offer interpretations, and look for explanations. Historians are memory entrepreneurs, Balkin insists, and “memory has normative power” (186). The problem is that historians have no particular claim to wisdom or justice. What C. S. Lewis (July 20, 1958) said of central planners seems to hold as well for historians: they are “simply men; none perfect; some greedy, cruel and dishonest” (“Willing Slaves of the Welfare State,” The Observer, 1958). The opening anecdote about the dubious history Jane Roe’s legal team relied on illustrates the risk: if history is a source of authority, the temptation to manipulate it is strong. How can we ensure that constitutional memory—especially when professors who claim authority based on specialized expertise construct it—remains tethered to truth rather than the will to power?

Balkin does not solve that problem for us, and it is unfair to expect that he would. His basic insight is that we channel claims about history through each of the different modalities of constitutional argument and that constitutional construction often entails appeals to history to determine constitutional meaning. Fair enough. Yet Balkin is not just an analyst of the various ways we use history in our ongoing contests over constitutional meaning; he participates in those contests. Memory and Authority is a book about history for lawyers and judges: it urges them to reject forms of originalism that the conservative legal movement developed and embrace a “living originalist” approach to constitutional construction that uses the past as a resource for the construction of constitutional authority.

Balkin notes that conservative originalists, like their living originalist brethren, frequently engage in constitutional construction rather than the recovery of a “thick” original meaning of the Constitution (112). That often leaves us with warring constitutional constructions based on warring constitutional histories. Abortion is perhaps the primary example. Balkin criticizes Justice Samuel Alito’s majority opinion in Dobbs for its use of history while citing and repeating the claims of a brief submitted by the American Historical Association (202–5) that had recycled some of the false historical claims relied on by Jane Roe’s legal team in the early 1970s. There is much more to be said about this than can be written in a short review, but it serves to illustrate the problem. The AHA’s false historical claims were corrected in opposing briefs by legal scholars such as John Finnis, Robert George, and Joseph Dellapenna.Footnote ² Elsewhere, I have chronicled how professional historians have repeatedly, deliberately, and knowingly constructed false abortion histories to influence constitutional litigation (Slavery, Abortion, and the Politics of Constitutional Meaning (Cambridge University Press, 2013), 105–32). Some historians, it seems, are tempted to play fast and loose with history when constitutional authority is at stake.

The contest over history continues across a range of issues relevant to great constitutional controversies of our day. Yet the American constitutional story’s success, Balkin insists, depends on our having a shared constitutional memory. Americans must see themselves as “part of the same ‘We the People’ who adopted the Constitution and its amendments,” Balkin writes (224–25). Is it wishful thinking to advocate for a shared constitutional story in our divided times? Perhaps. History is fraught, because politics is fraught. Politics is about authority, and contests over constitutional memory are contests over constitutional authority. Constitutional politics may be a higher order politics, but it is a form of politics nonetheless. Although Memory and Authority will not end our constitutional divisions, it will help us better understand them. Balkin’s most recent salvo is a thought-provoking contribution to the ongoing debates about history, memory, and constitutional meaning.