Jack Balkin has written 'a book about how people use history when they interpret the Constitution' (3). What he has not attempted to do is write a book about how people use history when they interpret a constitution. His use of the definite article makes clear that it is a specific constitutional document that is the object of his scholarly inquiry. A work that has been reviewed extensively, Balkin's book has been widely and rightly acclaimed for its nuanced treatment of interpretive issues central to American constitutional theorising. One of the challenges for his readers is to shift the focus to the indefinite article, to explore the implications of his analysis for comparative constitutional theory, which is to say, how the uses and abuses of 'memory and authority' might be viewed in constitutional settings very different from the circumstances that have come to define the Constitution in the United States.
Memory and Authority is both a distillation of ideas that the author has grappled with in previous writing, as well as a further elaboration that broadens the inquiry into a specific interpretive modality - originalism - to a more general consideration of the manner in which history is invoked in constitutional contestation to achieve desirable results in the present. Thus, 'arguments about ethos, tradition, and honoured authority are always as much about present-day values as they are about history' (53). As the leading academic proponent of 'framework' or 'living originalism' (the argument that an original governing framework enables constitutional construction to keep the document up to date), Balkin sees in the interpretive resources it provides for ‘build[ing] out and implement[ing] the Constitution under changing circumstances' (99) a conclusive reason for preferring it over the 'thick originalism' that has emerged as the governing jurisprudential proclivity of today's conservative judges and scholars. As for its reach and relevance for jurisdictions outside the United States, ‘living originalism is fairly easy to adapt to other countries with a written constitution' (76). By way of contrast, originalism [as practiced by the conservatives] ... has not taken hold in many other places' (75).
Unlike previous reviewers of his work, who are aligned with the author in their US-centric perspective, and who therefore consider the strengths, weaknesses, and political biases of Balkin's account of originalism with that in mind, the discussion here focuses on his intriguing but largely undeveloped thoughts concerning memory and authority in other places. Do the reasons for originalism's comfortable fit within the American constitutional context provide any insight into the ways in which it has played out elsewhere? Specifically, Balkin […]
To read the full review, please click here. Online access is free for members of the European Society for Comparative Legal History.
DOI: https://www.tandfonline.com/doi/full/10.1080/2049677X.2026.2671642
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