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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.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 Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler 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 yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.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 David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Ideas without Authors: The Founding and the Founders
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Wednesday, May 18, 2022
Ideas without Authors: The Founding and the Founders
Guest Blogger
This post was prepared for a
roundtable on
Public Memory and
Public Monuments, convened as part of LevinsonFest 2022—a
year-long series gathering scholars from diverse disciplines and viewpoints to
reflect on Sandy Levinson’s influential work in constitutional law. Jonathan
Gienapp History
and memory are different, yet sometimes the difference between them can seem vanishingly
small. In the United States, like no doubt elsewhere, historical study often
rubs against potent forms of public memory, so much so that studying the
nation’s past can feel like an exercise is combating, correcting, or amplifying
the popular symbols and narratives that shape understanding of it in the
present. The connections between history and memory become especially tight,
and fraught, when attention turns to the American Founding—where history and
public memory are so intertwined that it can seem fruitless to make out the
difference. From the beginning, the history of the American Revolution and the
Constitution have often been little more than struggles over how each is remembered. Little
has changed. The Founding still orients so much of the nation’s memory
politics. Like all nations, the United States relies on shared symbols and
stories to carry on, ones that invariably offer an account of where the nation
has been and where it might head. But unlike other nations, in the United
States these symbols and stories always seem to return to the nation’s beginnings.
A pilgrimage to the nation’s capital quickly reveals the importance of the nation’s
origins to its symbolic landscape. Travelers make their way across the National
Mall to monuments commemorating its venerated Founders and to the National
Archives to glimpse the nation’s founding documents—the Declaration of
Independence and the Constitution. Combined, these symbols and artifacts
constitute the core of American civil religion, serving as the basis for
Americans’ shared memory and collective identity as a people distinct from
others, and offering the common historical materials through which Americans
can critique or venerate. Few
scholars have deepened our understanding of these distinct pillars of American
civic religion and memory—the nation’s sacrosanct monuments and its sacred scripture—as
much as Sandy Levinson. Our great student of American civic faith, Sandy has
helped us see how the nation’s present and future so often rest not so much on
what happened in its past but on what it has chosen to remember and forget. In
honor of Sandy’s storied scholarly career, and all he has taught me through his
enormous erudition, probing scholarship, and infectious intellectual curiosity,
I will briefly reflect on the relationship between the two distinct aspects of
American civic memory that he has studied in depth: public monuments and
foundational texts. Monuments
and venerated texts are often treated separately, but they share similarities. We
might not think of the Declaration of Independence or Constitution as
monuments, yet in certain respects, of course, each are. Like other monuments,
they are material manifestations of cherished principles and values, objects of
historical memory, belonging, and identity that are meant to stand for
something enduring and significant. They provide publicly sanctioned links
between past and present, and as means of venerating that past, they each run
the risk of orienting us backwards and inhibiting change—of resisting
democracy’s latent urge to move forward. In this regard, Sandy’s work on public monuments and Americans’ scriptural devotion to the Constitution
dovetail seamlessly—elegantly capturing the peculiar tension of American public
life: almost limitless fealty to the “people’s” righteous authority set
alongside unthinking reverence for people long dead. This
theme especially comes into focus if we consider debates over the Jefferson
Memorial and constitutional originalism. Here we find an intriguing parallel: each
debate reveals a peculiar unwillingness to separate ideas from authors, a
reluctance that underscores a broader instinct to harness democracy by
tethering it, and the ideals that sustain it, to the visions of particular historical
figures. When
Americans debate their Founding, it never takes long for Thomas Jefferson to seize
the limelight. Long regarded as the mirror of America for how he has seemed to
capture the ideals, possibilities, paradoxes, and failings of the nation, it is
no exaggeration to suggest that no American historical figure has towered over
the scene quite like him. As James Parton wrote in 1874, “If
Jefferson was wrong, America is wrong. If America is right, Jefferson was
right.” Of course, a major reason why Jefferson has continued to dominate public
memory and debates over it is due to the issue of race. Not only was he a large slaveholder who proved unwilling to free the vast
majority of those he held in bondage, but he also famously (or infamously)
fathered multiple children with one of those enslaved
women, Sally Hemings. Here, in intimate
terms, Jefferson’s contradictions capture for so many the deeper contradictions
of the nation itself: the critic of slavery and principal author of the
Declaration of Independence’s soaring commitment to human liberty kept most of
his children and their mother in bondage. The racial reckoning sweeping the
nation has, thus, made talking about Jefferson, and especially his union with
Hemings, difficult and timely. And as calls intensify to remake America’s
memorial landscape—to change or even tear down those public monuments that prop
up a certain exclusionary vision of the nation’s past—Jefferson himself has been
targeted. Student
activists at the University of Missouri have repeatedly called for the statue of
Jefferson that resides on their campus (an homage to the fact that the
university was the first founded in the Louisiana Purchase territory acquired
during Jefferson’s presidency) to be removed. Other activists, including one of
Jefferson’s own white descendants, meanwhile, have called for the Jefferson
Memorial in Washington, D.C. to be taken down. Last fall, direct action was
taken in New York, as Jefferson’s statute was removed from the City
Council chamber. Amidst
this rising debate stands an interesting question: What is the relationship
between cherished ideals and the flawed people who have been said to author
them? I have witnessed this struggle firsthand. At Stanford, I teach an
introductory seminar on Thomas Jefferson and his legacy, during which I invite
students, fresh to college, to wrestle with Jefferson’s ideas, accomplishments,
and failures. Invariably we talk about how he is memorialized, and what should
come of the national monument commemorating him. Often, the conversation
parallels those taking place across the nation. One common defense for
maintaining the Jefferson Memorial—advanced in my class as well as leading op-ed pages and letters to the editor of major news
outlets—is that it’s less a monument to Jefferson than to the worthy national ideals
he helped establish. As principal author of the Declaration of Independence, he
helped write America’s enduring creed. We remember Jefferson, the argument
goes, in spite of his personal failings and abhorrent views on racial
difference, not because of them. To counter this common claim, it is often asked
why the monument should not simply stand for the ideals in question? Why must
Jefferson have any association with them at all? Why must the ideas be tethered
to the man? What’s interesting is how instinctively many seem to resist this
proposal, suggesting that the ideas cannot be fully understood apart from Jefferson’s
original ownership of them. Perhaps,
as Sandy himself has suggested, it’s as simple as nations need heroes, and can’t
cope without them. Or perhaps the work of public memory, in particular, demands
actors with intentions, protagonists who set the world in motion. After all, we
have a much harder time seeing impersonal forces like institutional and
structural racism than we do racist people. Of course, there is more to this
struggle than merely the relationship of a so-called author to the ideas
commonly associated with them. In this case, some Americans’ unwillingness to
tear down a Jefferson monument is likely based on more direct loyalties to the
man or what he is believed to represent. But, nonetheless, I’m struck by how
often the debate seems to turn on a curious puzzle: the idea the American
Founding cannot be disentangled from the Founders. They come as a package deal. There
is a striking parallel between this debate and the one over constitutional
originalism. For years now, most originalists have privileged original public
meaning (what the Constitution’s words communicated to an average reader at the
time of ratification) over the original intent of the document’s framers. What
matters is the words, not those who wrote them. Yet, in practice, that separation has
proved difficult, if not impossible. Originalism’s
rhetorical and political appeal is inseparable from the ongoing
veneration of the men most responsible for it. But even if it could be so
separated, there would remain the interesting fact that originalists still
place enormous weight on particular individuals in the constitutional past.
Even though the theory of public meaning originalism seems to democratize constitutional
meaning—by nominally placing equivalent weight on what ordinary people took the
Constitution to mean as any venerated Founder—in practice, those who take their
place in the constitutional pantheon dominate originalist analyses. As Jack
Balkin has argued, originalism is as
much a theory of constitutional memory as it one of interpretation.
Originalists choose to remember a cast of characters, texts, and events that
matter are often notably small. As it turns out, a
Constitution untethered from original constitutional visions, is compatible
with a host of competing readings and can be pulled in several distinct
directions. Cabining that constructive potential, and keeping the original
Constitution in line with certain visions of limited national governance,
federalism, and individual liberty, is easier if the authority of certain
figures is relied upon to shape the acceptable possibilities. Accordingly,
many originalists continue to privilege James Madison,
placing undue weight on his writings and interpretations, and especially the
constitutional middle ground he appeared to stake out between devoted
nationalists, like Hamilton, and more fervent defenders of states’ rights, like
Jefferson. More recently, originalists have grabbed hold of Madison’s views on liquidation—on how
constitutional ambiguity ought to be settled through practice—sometimes giving
off the impression, unwitting or not, that he stands in for the Founding
generation. Rather than attending to the cacophony of voices at the Founding,
including those outside the formal halls of power, originalists are more comfortable
with a constitutional world that is exceedingly cramped. One finds a similar
tendency surrounding their treatment of the Reconstruction amendments, where
John Bingham, principal author of Section One of the Fourteenth Amendment, and
a small coterie of radical Republicans are routinely elevated above the scores of
others who comprising the congressional majority, never mind the political
public, at the time, with the effect of establishing
Section One as the heart of the amendment and Bingham’s
forward-looking vision (which the Supreme Court would soon betray) of the
amendment’s ultimate meaning. The free-for-all of original public meaning is
circumscribed by assuming that certain people matter more—both then and now. As
with defenders of Jefferson, thus, we find a reluctance to sever original
constitutional meanings from original constitutional authors, to allow
democratic ideals and authority to swing free of a certain historical custody.
We find an interesting marker of the very tension at the heart of American
democratic memory that Sandy has done so much to elucidate. The ideals of our
Founding are worth celebrating and enforcing, but not quite on their own. Monuments
solely to authorless ideas, like free-floating constitutional meaning, leave us
adrift. In yet another domain, the death of the author
appears premature. Our true foundations are not our Founding, but our Founders,
or so one might be forgiven for concluding. How this works with democracy is an
open question. Given Sandy’s established position on the
Constitution’s undemocratic character, it seems only fitting to end with that
problem. Considered in tandem, public monuments to the nation’s so-called “Founders”
and the venerated texts they laid down, reveal a common instinct to root ideas
in people, suggesting a particular way in which the authority of the past is
often deployed and negotiated in the present. What that means for the project
in self-government is worth pondering. Jonathan
Gienapp is an
Assistant Professor of History at Stanford University. You can contact him at
jgienapp@stanford.edu.
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |