History vs. Originalism: The Bill Comes Due

Abstract

This is a review essay of three highly significant recently published books concerning constitutional history, the controversy over originalism, and constitutional interpretation.  The books are: Jack Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation; Jonathan Gienapp, Against Constitutional Originalism: A Historical Critique; and Mark Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War.

The views of historians on how to best use historical evidence to interpret the Constitution have long taken a back seat in the debates of legal scholars.  I argue that this will no longer be the case once the legal academy has absorbed the lessons of these books.  Historians have finally weighed in and constitutional scholarship will be better for it.

While academic originalism comes in for substantial criticism in all three books, their more subversive theme is that giving history its proper due poses difficulties for the ordinary practice of constitutional lawyering as well.  Whether originalist or not, all lawyers and judges have much to learn from these books.

Keywords: Originalism, constitutional theory, constitutional history