an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Distinguish three forms of historical argument in constitutional theory: as positive authority, as practical experience, and as national ethos.
(1) History deployed as positive authority purports to settle the meaning of clauses or doctrines by reference to things that happened in the past. For example, the way language was commonly used in 1789 might be adduced to establish the meaning of “religion” in the First Amendment, and the practices of many different states over time might be adduced to determine whether a particular liberty is fundamental for the purposes of substantive due process.
(2) History deployed as practical experience aims to help decisionmakers translate normative constitutional visions into effective institutional arrangements. It might point out that something taken as necessary is actually contingent; or that something regarded as happenstance has resisted numerous attempts at change; or that different institutions have had differing success in pursuing certain goals; or that an axiom of constitutional wisdom may be an inherited bromide rather than a cogent analysis of how government operates.
(3) History deployed as national ethos attempts to tell a story about the constitutional values of the American People. We are a people who prize democracy, or federalism, or who fought a terrible Civil War to end slavery, or whose institutions presuppose a Supreme Being. Of these three forms of argument, history as national ethos is often the most powerful. It sometimes comes cloaked as one of the other kinds: many historical arguments that seem to sound in positive authority or practical experience are better understood as sounding in ethos. They do their work if they persuade their audiences to accept not just the particular historical propositions for which they are offered but a general and value-laden impression about the meaning of American history. Much originalist argument is best understood as argument about national ethos, inasmuch as it attempts to portray a heroic American constitutional past that supports a particular set of value choices in the present. Much of what we call “redemptive constitutionalist interpretation” similarly deploys history as ethos.
Successful movements in constitutional politics are good at making historical arguments that sound in national ethos. I hope that in the year 2020 progressives will stand securely on their versions of the national ethos in the sphere of constitutional politics. But there is a danger here for scholars who are attracted to the arena of those politics.
Because American history can be narrated in several different ways that highlight different (and conflicting) values, the interpreter who deploys history as ethos will privilege some values and shunt others aside. The choice can be made with varying levels of self-awareness, but the narrative offered will always be partial and contestable. Making those choices is an appropriate activity in politics, including constitutional politics. But such simplifications are dangerous to the spirit of scholarship, which should embrace complexity rather than repressing it away. Accordingly, constitutional theorists who work in the academy should beware of presenting their ethical narratives as—to use a phrase advisedly—the law. This does not mean that good scholarship should not be normative. It means only that the normativity appropriate to scholarship must be consistent with rendering the world in its complexity. Where the dominant historical narrative supports undesirable constitutional politics, it is appropriate for scholars to showcase alternatives, thus pointing out that the world is complex and that the dominant narrative is not a necessary framing. In that spirit, I have previously recommended the development of “mobilizable history” beyond what is conventionally made the source of constitutional argument. But constitutional theory—or at least academic constitutional theory—should remain aware that any alternative narratives are also partial. And public officials should strive to remember that complexity when making constitutional decisions now, in 2020, and beyond.