Memory and Authority: The Uses of History in Constitutional Interpretation

Fights over history are at the heart of most important constitutional disputes in America. The Supreme Court's current embrace of originalism is only the most recent example of how lawyers and judges try to use history to establish authority for their positions. Jack M. Balkin argues that fights over constitutional interpretation are often fights over collective memory. Lawyers and judges construct-and erase-memory to lend authority to their present-day views; they make the past speak their...