Some Realism About Originalism

William J. Novak* April, 2025

Memory and Authority: The Uses of History in Constitutional Interpretation. By Jack M. Balkin. Yale University Press. 2024. Pp. viii, 370. Hardcover, $110; paper, $35.

I. History and Tradition

We need history, but not in the way a spoiled loafer in the garden of knowledge needs it.

—Friedrich Nietzsche¹

Jack M. Balkin’s Memory and Authority: The Uses of History in Constitutional Interpretation² is very well-timed. For in June 2022, the United States Supreme Court momentously and controversially elevated the status of my professional field of inquiry—American history—to new heights of significance in constitutional interpretation. Writing for the majority in New York State Rifle & Pistol Ass’n v. Bruen, Justice Thomas used the words “history” or “historical” more than 100 times in establishing the centrality of “this Nation’s historical tradition” to contemporary Second Amendment jurisprudence.³ In Dobbs v. Jackson Women’s Health Organization, Justice Alito invoked “history” over 50 times to hold that any judicially recognized constitutional right must be “deeply rooted in this Nation’s history and tradition.”⁴ Justice Gorsuch similarly argued in Kennedy v. Bremerton School District that “[a]n analysis focused on original meaning and history” was key to unlocking an Establishment Clause necessarily “interpreted by ‘reference to historical practices and understandings.’”⁵ In West Virginia v. EPA, Justices Gorsuch and Kagan deployed competing historical accounts of agency delegations going “all the way back to this Nation’s founding.”⁶ The June 2022 cases were a poignant testament to the steadily rising power of constitutional originalism, in all its baroque permutations (whether original intent, original public meaning, positivist originalism, or some new, soon-to-be released variant), over the content of Americans’ twenty-first century constitutional rights.⁷

One of the striking things about this conspicuous elevation of history as a standard of constitutional interpretation, however, is professional historians’ seeming disregard for its intellectual seriousness or its philosophical or methodological significance. Indeed, while all too cognizant of the vast political consequences flowing from the Court’s recent “historical turn,” most historians, until recently, have treated constitutional originalism and history and tradition as a matter of ideas with detached disdain, puzzled wonderment, and even dismissive bemusement—as in: “Surely, they can’t be serious.” Surveying recent books by Mary Bilder, Saul Cornell, Jonathan Gienapp, Michael Klarman, Alison LaCroix, and Jack Rakove, James T. Kloppenberg contended in 2020 that “the idea of originalism, whether it’s 1.0, 2.0, or 3.0, has been so thoroughly discredited” by “serious” legal historians that “there is little left to say about it.”⁸

Alison LaCroix doubled down a couple years later: “It is simply false to suggest that the Court’s conservative majority is doing anything that resembles ‘history.’ . . . [D]etermining what the text of the Constitution meant when it was adopted is a complex undertaking. Historians have a word for this process: ‘research.’”⁹ Jonathan Gienapp has now written two research monographs on constitutional interpretation during the Founding and discovered little historical evidence for any kind of originalist pedigree there.¹⁰ To the contrary, his own history of originalism—and yes, originalism has its own peculiar history—unearths nothing short of an “urgent threat . . . to the practice of history,” wherein “originalists have come to wage a steady war . . . against the methods of history themselves.”¹¹ In his 1996 opus Original Meanings, Jack Rakove followed Gordon Wood in describing originalism as “a necessary fiction for lawyers and jurists”—part of an everlasting “quest for the Holy Grail of original meaning”—concluding that “the notion that the Constitution had some fixed and well-known meaning at the moment of its adoption dissolves into a mirage.”¹² Rakove regarded “the celebratory attitude toward the higher wisdom of the founders” to be an essentially political project—“the work of recent conservative political theorists.”¹³

Some legal scholars have come to a similar conclusion. Robert Post and Reva Siegel, for example, also deemed originalism an essentially “political practice” excavating originalism’s own explicit historical roots in the Rehnquist Court and Reagan Justice Department’s attempts to roll back Warren Court jurisprudence.¹⁴ Through the activist, ends-oriented, and consequentialist efforts of movement conservatives, theorists, and jurists—like Edwin Meese III, Raoul Berger, Robert Bork, Justice Scalia, and Justice Thomas—originalism, which Post and Siegel call “the right’s living constitution,” was born in counter-revolution as a “powerful vehicle for conservative mobilization.”¹⁵

Of late, however, given the radical and impactful consequences of the embrace of history and tradition by the conservative majority of the Supreme Court (the overturning of Roe,¹⁶ the overturning of Chevron,¹⁷ the return of nondelegation,¹⁸ the reinvention of a major questions doctrine,¹⁹ and the diminishment of the administrative state²⁰), historically minded legal scholars have reexamined their earlier dismissal of originalism—what Gienapp referred to as “scoffing it off as a quaint curiosity, outlandish absurdity, or both.”²¹ And more liberal and progressive historians themselves have recently gotten into the originalist (or, at least, the history and tradition) game—sometimes with relish and enthusiasm—betting on the chances for the imminent rise of an alternative form of so-called “living originalism” or “liberal originalism”²²

Something of a turning point in this intermix of law and history was crossed when Justice Kennedy famously recognized the work of professional marriage historians in Obergefell v. Hodges.²³ As Kennedy recounted some of marriage’s legal history from the Amicus Brief for Historians of Marriage:

As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned. . . . These and other developments in the institution of marriage over the past centuries were not mere superficial changes. Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential.²⁴

After Obergefell, historians like Nancy Cott, George Chauncey, and Hendrik Hartog took victory laps of a sort, celebrating the ability of historical research to sway the Supreme Court on significant social issues.²⁵ The supposed success of such professional histories and historians in influencing constitutional interpretation soon opened the floodgates to a new wave of constitutional advocacy from historians.²⁶ And some historians moved ever closer to practices that at least vaguely resembled originalist forms of argument, interpretation, and justification.²⁷

Indeed, with the Court’s most recent turn to history and tradition, ad hoc legal-historical advocacy has given way to the institutionalization of historians’ professional expertise within law. In January 2024, the Brennan Center for Justice unveiled a “Historians Council on the Constitution,” featuring seventeen “expert historians from leading institutions nationwide” organized “[t]o help change the national legal conversation on history and the Constitution.”²⁸ To date, this collaboration of advocacy and scholarship has produced historians’ amicus briefs in numerous Supreme Court cases.²⁹ And council members boast additional contributions with titles like “History Proves that Presidents Can Be Held Accountable” and further claims of direct Supreme Court influence.³⁰ As Holly Brewer and Laura Edwards described the efficacy of the historians’ amicus brief in Rahimi,³¹ “[T]he Court listened to our brief as historians and upheld restrictions on domestic abusers. But it was only a tiny victory because, when it comes to firearms, the justices continue to legislate from the bench.”³² Such purported “tiny” victories have only increased interest in the possibility of a more “living” or “liberal” or “progressive” version of originalism—a place where law and history might finally come to cohabit more amicably with one another.

II. Dreams of a Progressive Originalism?

History . . . is a nightmare from which I am trying to awake.

—James Joyce³³

In this conflicted, rapidly changing, and consequential space, Jack Balkin has emerged as an astute interlocutor and potential peacemaker. Balkin maintains regular, amicable dialogue with originalists while exploring the possibilities for a more vibrant version of originalism. He has also consistently advocated for bringing the fields of history and law more closely together. His constitutional casebook, Processes of Constitutional Decisionmaking, for example, wonderfully interweaves legal text with ample and serious historical context.³⁴ And the many forums, symposia, collaborations, and conversations he has hosted through his blog, Balkinization, as well as through innumerable other formal and informal venues,³⁵ are gifts to the fields of both law and history. It is difficult to imagine a more hospitable guide with which to traverse the treacherous intellectual borderlands separating originalism, constitutional law, and American history.

Balkin’s Memory and Authority is his latest book-length intervention on exactly this topic—the relationship between law, history, and constitutional originalism. And it is fair to see this book as something of a direct sequel to his 2011 volume Living Originalism.³⁶ Indeed, Balkin revisits large parts of his argument about the possibilities for a living originalism in Memory and Authority. Together, the books compile, revise, and expand upon the combined wisdom of at least thirteen articles published over the last seventeen years. And as first-order field guides to ever-expanding literatures on originalism and history and tradition, the books provide an invaluable service. After all, Max Planck Law has counted “more than 650 student-edited law reviews” in the United States, with many of these publishing several issues per year.³⁷ The sheer volume of substantive content discussing these topics has surged to almost unmanageable levels in response to the recent jurisprudential turn towards history and originalism. In Balkin’s first footnote on “History and the Forms of Constitutional Argument,” for example, he lists thirty-five separate books and articles (pp. 272–73). A similar up-to-date bibliographical reference on originalism would substantially dwarf that.³⁸ In this expansive and consequently elusive scholarly ecosystem, Balkin has carefully read the requisite books, articles, historians’ briefs, and court opinions. Readers attempting to get a serviceable handle on an increasingly unwieldy scholarly literature should look no further than these two volumes.

A. Originalism: Dead or Alive

But Balkin is after much more than a compendium or hornbook concerning law, history, and originalism. Rather, he seeks an independent intervention—and a bold one at that. He advocates nothing less than reconciliation and rapprochement across two of the biggest divides in law and history. The first is the legal divide between contending theories of constitutional interpretation: originalism and living constitutionalism. The second is the divide more generally separating professional historical scholarship from living originalist forms of constitutional advocacy. Across two volumes, 800 pages, and a couple decades’ worth of serious reading and thinking, Balkin’s big-tent project tries to simultaneously square two circles by generating a new version of originalism capable of accommodating both conservative originalists and progressive living constitutionalists. Consequently, this new originalism may encourage more historians to overcome their professional reservations about the use and abuse of history in constitutional interpretation.

In Living Originalism, Balkin first expounded his own theory of “framework originalism” to bridge the gap pitting originalism against living constitutionalism in the battle for the soul of American constitutionalism. Balkin introduced the basic antagonism in the book’s opening question: “Is our Constitution a living document that adapts to changing circumstances, or must we interpret it according to its original meaning?”³⁹ In Memory and Authority, he begins with the same juxtaposition, wherein originalism argues that “we should interpret the Constitution . . . consistent with its original meaning—or in some versions, consistent with the original understanding of the ratifiers or the original intentions of the framers” (pp. 8–9). In contrast, living constitutionalism “argues that the practical meaning of the Constitution adapts—and should adapt—to changing social conditions” (p. 9).

Balkin’s gambit in both volumes (and the surprising answer to his central question) is the same. In Living Originalism: “[T]he choice is a false one. Properly understood, these two views of the Constitution are compatible rather than opposed.”⁴⁰ In Memory and Authority: “People often think of these two approaches to constitutional interpretation as irrevocably opposed. But in fact they are just two sides of a single coin” (p. 58). From Balkin’s perspective, these visions are “complementary,” not competing, ways to reconcile the constitutional realities of “ceaseless change” and “increasing separation from the past” (p. 10). Whereas originalism demands that we “restore what was lost, return to ancient verities, and respect long-standing traditions,” living constitutionalism “emphasizes that we must accept the reality of change” and “adapt successfully to new conditions” (p. 10).

Balkin achieves this strange alchemy—this union of opposites—through the synthetic elixir he dubs “framework originalism” (p. 9). On the one hand, this approach adopts originalism’s textual concern with fidelity and faithfulness to the “original meaning of the Constitution” as a “framework for governance.”⁴¹ On the other, it incorporates the emphasis placed by living constitutionalism on the need to actively “build out constitutional constructions that best apply the constitutional text and its associated principles in current circumstances.”⁴² Balkin argues that constitutional interpretation, properly understood, embraces two kinds of interpretive activity: (1) interpretation as ascertaining the original meaning of constitutional text as written and enforceable law, and (2) interpretation as “building out” constitutional meaning—constitutional construction—through multiple modalities, across competing branches of government, and through ordinary popular politics and social movements.⁴³ Balkin calls this inclusive method “living originalism”: paying attention to original meanings while simultaneously building out constructions in light of changing circumstances. His solution is thus “both originalist and living constitutionalist.”⁴⁴

Memory and Authority reprises and refreshes Balkin’s distinctive hybrid for a new audience. Now, “living originalism” speaks more directly to professional historians in an attempt to again bring closer together scholars, scholarship, and methods too frequently divided and in contest. And surely, as deep as is the cleavage between originalism and living constitutionalism in law, deeper still is the categorical doubt and epistemological disbelief with which most professional historians view constitutional originalism as an intellectual and political project. As Balkin chronicles throughout this book, historians have long been dubious about the ways in which lawyers deploy history in legal argument and advocacy. As he puts it, “[t]he quarrel between lawyers and historians about the proper use of history in constitutional law is an old one” (p. 231). Indeed, the charge that lawyers and legal scholars routinely misuse, abuse, and misunderstand history in their strategic quests for distinctly “useable pasts” in adversarial proceedings has yielded its own derisive vocabulary concerning the perils and pitfalls of “law office history,” “History Lite,” and “cherry-pick[ed]” historical evidence (pp. 231, 258, 157). That vocabulary now pervades historians’ critiques of originalism.⁴⁵

B. Law-Office History

But here too, there is another side of the coin. And Balkin is equally effective—especially in his chapter on “The Special Skill and Knowledge of Lawyers”—in chronicling the efforts of legal scholars like Michael Rappaport, Randy Barnett, Will Baude, and Stephen Sachs to blunt historical attacks on originalism’s supposed abuse of history (ch. 15). Taking refuge in what Balkin dubs “law’s methodological autonomy,” originalism’s most recent and influential iterations take explicit aim at historians’ supposed neglect of “the specialized craft of lawyerly reasoning” and the interpretive techniques “known only to the professionally educated and accredited” that allow lawyers to exclusively determine the “legal meaning” and “legal consequences” of legal texts (pp. 14, 240). So, for example, Barnett can argue that in so-called “new originalism,” history is not even particularly helpful in interpreting or ascertaining the “objective meaning” of distinctly legal terms—even legal terms and texts from the distant past (p. 244). And Baude and Sachs, Balkin claims, “ingenious[ly]” attempt to sidestep historians’ critiques in their versions of “positivist originalism” or “original law originalism” by reasserting law’s technical and disciplinary autonomy, wherein “[d]eciding what the law of the past is draws on lawyers’ legal training” (p. 245). Consequently, “no history gets in unless law says that it does” (pp. 246–47). Notably, in excavating recent lawyers’ rebuttals of historians’ critiques, Balkin’s Memory and Authority also highlights the vast proliferation of originalisms since the publication of Living Originalism—what he calls the “Thirty-One Flavors of Originalism” (p. 60). The ever-expanding menu of interpretive options results in something Balkin calls “cafeteria originalism,” where legal advocates get to “pick and choose when to follow the views of the founders, framers, or adopters . . . and often artfully recharacterize these principles to support contemporary political and legal arguments.”⁴⁶

So, once again, we have a seeming maelstrom of discontent and division—now growing beyond one pairing (originalists and living constitutionalists) to engulf and exacerbate long-simmering animosities between another (historians and lawyers). And, once again, right on cue, Balkin offers up living originalism as a healing balm—an ecumenical method of constitutional interpretation capable of transcending such methodological disagreements in a quest for higher common ground. Balkin puts it simply: “[L]iving originalism is superior in its use of history. It is more compatible with the work of professional historians” (p. 9).

C. What Lawyers Want from History⁴⁷

Central to the task of inviting professional historians to living originalism is a device that Balkin first introduced in Living Originalism—Phillip Bobbitt’s notion of multiple “modalities” of legal and constitutional interpretation.⁴⁸ These are the various standard forms, professional styles, and rhetorical categories that lawyers utilize when making constitutional arguments. In Living Originalism, Balkin highlighted five such modalities: “history, structure, ethos, consequences, and precedent.”⁴⁹ But in his effort to construct an ever more inclusive and pluralistic interpretive environment for historians to enter, Balkin builds out an even vaster network of potential forms in Memory and Authority: arguments from text, structure, purpose, consequences, judicial precedents, political convention, customs, natural law or natural rights, national ethos, political tradition, and honored authority.⁵⁰ So vast are the interpretive possibilities that Balkin’s efforts to illustrate all the various modalities test the horizontal marginal limits of the printed page. But it is precisely in this proliferation of possible forms of constitutional argument where Balkin sees the potential for historians to actively join a living originalist project—for “[c]onstitutional argument treats history as useful to the extent that it helps people make claims of legal authority using one of the standard forms of justification” (p. 22). Using this opening, Balkin proselytizes for a big-tent version of originalism that reaches a climax in chapter fourteen’s “Historians Meet the Modalities,” a veritable how-to guide for “scholar-historians” to embrace “legal advocacy.” As he concludes rather triumphantly, “Viewed from the perspective of the modalities, it is easy to understand how historians join issue with lawyers on the legal interpretation of the Constitution”—an apparent call for yet more historians’ amicus briefs (p. 239).

Built over two volumes, 800 pages, and much reading and thinking, Balkin’s vision for a living originalist mode of constitutional interpretation is so capacious, inclusive, pluralist, and diverse that there seems to be something for everyone within it. Professional historians will find much to like in Balkin’s account. They will nod in agreement when Balkin argues that “history is a resource, not a command” and that “the lessons of history are ambiguous and not easily adapted to our present situation” (pp. 6, 10). They will see much of their professional work represented in Balkin’s discussion of “critical” and “deconstructive” uses of history criticizing past practices and peoples, including “the founders and adopters of the Constitution” (pp. 5–6). They will applaud the attention that Balkin gives in both volumes to the role of social, political, civil, and equal rights movements in the active, ongoing construction of constitutional meaning. And they will fully embrace Balkin’s concern with the politics of constitutional “erasure,” where “the role of women and minorities in creating constitutional rights” is so often left out of constitutional history and interpretation (p. 210). To underscore the systematic erasure of these voices from constitutional memory, he nicely deploys Reva Siegel’s The Politics of Constitutional Memory: “[T]here is no mention in the United States Reports of Elizabeth Cady Stanton, Sarah Grimké, Sarah Parker Remond, Lucretia Mott, Lucy Stone, Sojourner Truth, Frances Ellen Watkins Harper, Mary Church Terrell, Alice Paul, Crystal Eastman, Florence Kelley, Ida B. Wells, or Mary McLeod Bethune.”⁵¹

Consequently, I have no doubt that Balkin’s open, accommodating, and embracing perspective on constitutional interpretation will prove attractive to many professional historians. Coupled with the Supreme Court’s recent historical turn,⁵² the increased number of interdisciplinary legal historians on law faculties,⁵³ and the increasing number of invitations to historians to advocate,⁵⁴ it seems inevitable that ever more historians will enter the constitutional fray. Given contemporary constitutional debate’s high stakes, that might be, from a political perspective, a wholly auspicious development.

But historians might also be advised to look more closely before they leap, to do a bit more due diligence, and to think a bit more carefully about what is being proffered here. After all, the words “Living” and “Memory” in Balkin’s titles are attractive, welcoming, and resonant. But the other two words, “Originalism” and “Authority,” are more dissonant with historical craft and practice. Balkin claims this can all be reconciled: two sides of the same coin, twins separated at birth. “History matters in constitutional interpretation because authority matters” (p. 3). But the history and philosophy of history, as well as the history and philosophy of law, point in some other less harmonious directions.

III. Realism and Reaction

It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.

—Oliver Wendell Holmes Jr.⁵⁵

“Originalism” and “authority” are but two words in Balkin’s volumes that should give professional historians pause. Indeed, despite finding much to like in Balkin’s expansive, history-friendly account of living originalism, a “through-the-looking-glass” feeling will also greet professional historians as they reckon with a strange and otherworldly vocabulary for thinking about the past. Balkin opens Living Originalism, for example, by anchoring his overarching argument around the words “fidelity,” “text,” and “principle.”⁵⁶

But two other more unusual words quickly rise up to carry his narrative along: the words “faith” (varieties of which appear 179 times in the book) and “redemption” (which makes 54 appearances).⁵⁷ Memory and Authority opens with a structuring vocabulary built around “authority,” “justification,” and “form” (pp. 3–4), but it, too, gives way to similarly elusive and ethereal words and concepts that depart noticeably from what most historians think about when they study and interpret the past—words like “ethos,” “tradition,” “honor,” “prudence,” “wisdom,” “courage,” “virtue,” “natural law,” and “higher law.” All of these words, of course, resonate more with a premodern theology or ethics than a modern social science. In their personal capacities, historians too might think such words and ideas are important,⁵⁸ but they just wouldn’t place them at the forefront of their own quotidian professional and interpretive practices. And the very history of such transcendent vocabularies only reinforces the historian’s suspicion that originalism, even dressed up in a most sophisticated and cosmopolitan guise, is less a realistic and prolific way forward than a devouring “jurisprudence of reaction.”⁵⁹

But it’s not just some of the organizing words and concepts present in Balkin’s living originalism that raise concern. It’s also some things important to historians—that are conspicuously missing. One such comparative absence in the voluminous academic conversation about originalism and history is, as Alison LaCroix sharply put it, “research”—actual empirical or archival investigation in the primary sources.⁶⁰ This is an important methodological issue that separates what Balkin calls “scholar-historians” from “lawyer-advocates” (p. 234). A key element in modern historical methodology, craft, practice, and praxis for over a century now has been the expectation that historians build their narratives from the ground up, immersing themselves in as much of the archival and primary materials surrounding a given problem or era as is possible. Historians write monographs—monographs predicated on archival, empirical, and primary-source-based methodologies. For professional historians, actually getting one’s hands dirty in a wide swath of primary materials provides the key source of historical innovation, as well as inoculation against conventional (and not infrequently flawed) narratives and interpretations.

Balkin’s two hefty volumes on history and originalism, of course, are not monographs. Rather, they are self-consciously works of constitutional interpretation.⁶¹ But historians will notice that amid all the new and extensive talk about history in constitutional interpretation, considerably less attention is paid to historical practice.⁶² And in the end, history is much more a practice captured in doing and showing than in talking and telling. The ratio in originalism of talking about history to actually doing, practicing, reading, and citing history gives professional historians pause and increases their suspicions that lawyer-advocates and originalists are simply not that interested in history qua history.

But beyond vocabulary and methods, the most troubling absence from most recent discussions of history, law, and originalism is a conscientious reckoning with, or reflection on, a centuries-long evolution of critical literature that examines in detail and with great intellectual seriousness the history and philosophy of history itself. Historians’ distinctive commitments to pursuing and explicating the past in a certain way are the product of more than personal preferences. They, too, are the products of a rather fascinating intellectual history that historians and philosophers have dedicated an enormous amount of time to excavating. That distinctly modern history and philosophy of history has yielded approaches to the past that are ill-fitting even the most “living” (or liberal, or progressive) version of originalism.

A. Historicism

In 1988, my former colleague Peter Novick published That Noble Dream: The “Objectivity Question” and the American Historical Profession—one of the most acclaimed histories of American history.⁶³ Novick’s book title came from Charles A. Beard’s 1935 classic, which critiqued history’s illusory quest for “objectivity” in the mode of Leopold von Ranke’s “wie es eigentlich gewesen ist”—history “as it actually was.”⁶⁴ Instead, Beard urged greater attention to “the philosophic side of historiography”—the “wider and deeper philosophic questions involved in the interpretation of history.”⁶⁵ By 1935, Beard already understood that the entire thrust of modern historical, philosophical, and social-scientific thinking ran against more absolute and formal claims to knowledge, meaning, authority, justification, certainty, and objectivity. As Beard put it, “No school that makes pretensions to exclusive omniscience . . . can long escape the corroding skepticism that search and thought bring to it.”⁶⁶ Instead, Beard endorsed a more pragmatic and realist approach to historical inquiry. “The distinction between particular facts that may be established by the scientific method and the ‘objective’ truth of history,” he wrote, “must be maintained, if illusions are to be dispelled.”⁶⁷ In the end, he insisted in the secular, modernist, disenchanted, and postmetaphysical spirit of his times that “members of the American Historical Association will be human beings, not immortal gods.”⁶⁸

Charles Beard was the most preeminent and prolific critical historian of his time. But he was not alone. Novick ably charts the radical positions—political, methodological, and epistemological—that joined Beard to the other influential historians, especially James Harvey Robinson and Carl Becker, working in the so-called “new history” tradition of the early 20th century.⁶⁹ And Novick summed up some of that school of history’s critical commitments. First, “they were convinced that the goal of a comprehensive, definitive, objective reconstruction of the past was not just unattainable in practice, but a vacuous ideal in principle.” Second, “[t]hey mocked the notion that ‘the facts spoke for themselves,’ and the old inductivist ideal of approaching the past ‘without preconceptions.’” And third, they were “convinced of the conservatism inherent in unadorned factualism,” contending that the “program of objectivity and abstention from judgment had been designed for conservative purposes.” Beard deemed Ranke himself a rank “conservative” intent on producing a useable past—“cold, factual, and apparently undisturbed by the passions of the time”—to serve the needs of elites “who did not want to be disturbed.”⁷⁰ In contrast, Beard advocated a more democratic, popular, and critical approach to history, wherein “history existed for man, not man for history.”⁷¹

The “new history” of Beard, Becker, and Robinson was, of course, very much tied to the larger emergence of what Vernon Parrington called “critical realism” and Richard Hofstadter called “progressive history” at the turn of the twentieth century.⁷² It also coincided with the rise of a more professionalized social science in the modern university. This “new history” brought an enhanced rigor, specialization, and methodological sophistication to the study and production of history via monographs.⁷³ Critical realism brought a more skeptical and analytical style to the investigation of the past—squarely hostile to older, confident, and more certain chronicles built around origin stories, founding myths, “honored authority,” “national ethos,” “political tradition,” or that noble dream of divining an objectified, authorizing meaning in original historical texts.⁷⁴ With intellectual influences ranging from historical materialism in social theory to legal positivism and philosophical pragmatism, critical realism yielded an approach to the past at odds with more traditional approaches to, or appropriations of, history built around great men, great events, great texts, great judges, and great cases. Indeed, Charles Beard’s An Economic Interpretation of the Constitution of the United States, published in 1913, remains perhaps the most biting realist critique of the Constitution and its Framers and Founders authored in the twentieth century.⁷⁵

This modern history of history is central to understanding modern historians’ professional methodological commitments that stand opposed to originalism. But as implied above, the modern philosophy of history only reinforces that basic antagonism. In a substantial book review entitled Objectivity and Historicism, James T. Kloppenberg endorsed much of Novick’s painstaking historiographical reconstruction, but he took him to task for failing to fully engage the philosophical and epistemological underpinnings of the historians’ first flight from objectivism.⁷⁶ Pushing beyond mere historiography, Kloppenberg detected beneath the embrace of the new critical and realist history an even larger and more significant commitment to pragmatism—an American philosophical position stretching from William James and John Dewey to Richard Rorty and Richard J. Bernstein that incorporated insights from a vast swath of modern European social theorists and philosophers—from Wilhelm Dilthey and Ludwig Wittgenstein to Hans-Georg Gadamer and Jürgen Habermas.⁷⁷ “From the earliest stages of ‘the new history,’” Kloppenberg contended, “Robinson, Beard, and Becker were beginning to challenge historical objectivity by infusing their historical writing with Jamesian ideas of truth” and a “historical sensibility.”⁷⁸ As Kloppenberg concluded, “It is precisely because the indeterminacy of truth and the historicity of reason are now widely conceded that we can no longer claim to find objectivity.” For that reason, however, modern historians “insist on the indispensability of historical studies as one of the most fruitful forms of inquiry in a world of uncertainty.” Beyond the noble dreams of certainty, authority, and original meaning, in other words, lies the modern historian’s “terrain of pragmatic truth, which provides us with hypotheses, provisional syntheses, imaginative but warranted interpretations, which then provide the basis for continuing inquiry and experimentation.”⁷⁹

Lest one think that critical realism and pragmatism were but passing fancies or temporary reactions to a set of discrete intellectual problems, the 200-year history of their emergence and persistence suggests otherwise. Indeed, critical realism and pragmatism were nothing less than responses to what Jürgen Habermas and Robert Pippin deemed the philosophical condition, problem, or crisis of modernity.⁸⁰ A key outcome of what Pippin called the whole “Kantian aftermath” was a reckoning with the irretrievably historical and social nature of reason itself.⁸¹ Old formalisms, certainties, and authorities quickly crumbled beneath the weight of relentless critical inquiry and intellectual interrogation. As Pippin summed up the monumental consequences of this antiformalist revolution in modern thought: “[I]n accounting for the fundamental elements of a conceptual or evaluative scheme, there is and can be no decisive or certifying appeal to any basic ‘facts of the matter,’ foundational experiences, logical forms, constitutive ‘interests,’ ‘prejudices,’ or guiding ‘intuitions.’”⁸² As Kloppenberg described this move in Uncertain Victory, “We must live with our uncertainty instead of trying to escape it.”⁸³ In place of absolute claims to truth, knowledge, and reason, we could only now appeal to a thoroughly social and historical understanding of “what we have come to regard” as plausible facts, potential norms, or tentative conclusions.⁸⁴ Claims to modern knowledge were suddenly irretrievably social and historical rather than individual, logical, or formal. As consummate pragmatist Richard Rorty once put it, “To accept the contingency of our starting-points is to accept our inheritance from, and our conversation with, our fellow-humans as our only source of guidance.”⁸⁵

It is important to underscore the degree to which the critical realism and pragmatism that animated the new history—and continues to drive contemporary historical practice—was distinctly antiauthoritarian and antiabsolutist. John Dewey portrayed William James as firmly “opposed [to] absolute dogmatism in philosophy.”⁸⁶ And the reason historians rely on pragmatic methods to test tentative hypotheses about the past, according to Charles Beard, was because “the inquiring spirit of science, using the scientific method, is the chief safeguard against the tyranny of authority.”⁸⁷ Indeed, the last book published posthumously by America’s greatest recent pragmatist Richard Rorty is entitled Pragmatism as Anti-Authoritarianism.⁸⁸ The philosopher Robert Brandom contributed a brilliant foreword that posits modern pragmatism as nothing less than a second Enlightenment, wherein human thinking could be reoriented again around a basic “commitment to human self-determination” through the “animating and orienting impulse” of “anti-authoritarianism.” Pragmatism’s “ultimate goal is our emancipation, both in practice and in theory, from subjection to non-human authority. Pragmatism points us at the sort of freedom that consists in humans taking full rational responsibility for our own doings and claimings.”⁸⁹

In short, pragmatic method has an antidomination, antisubordination, antidependency commitment at its core—human autonomy and self-determination, rather than heteronomy and subservience to nonhuman, trans-historical constraint. In a phrase, perhaps, “man does not exist for the sake of the law, but the law exists for the sake of man.”⁹⁰ Brandom concludes that pragmatism fundamentally rejects “the traditional understanding of authority and responsibility in terms of subordination and obedience” where we are taught or convinced to “conform our attitudes and practices” to “normative statuses of superiority and subordination, authority and responsibility, about which we don’t have a say.”⁹¹ It is not especially hard to see on which side of the coin originalism’s conceptions of authority, responsibility, and obedience fall in this all-important history of history and philosophy.

B. Critical Legal Realism

Now, of course, originalists, legal scholars, and jurists might still declare immunity from such pragmatic, historical, and philosophical conclusions. They could still, perhaps, seek cover from these philosophical complexities in the comfort of the age-old legitimating principle of legal autonomy—the idea that law is an independent discipline with its own professional training and certifications, its own academic hierarchy and literature, and its own specialized techniques of legal and constitutional interpretation.⁹² And that cartel-like, protectionist move is exactly what Balkin describes in detail in his chapter “The Special Skill and Knowledge of Lawyers” (ch. 15). Of late, scholars positing new iterations of originalism seek sanctuary from professional historians and historical critique by turning inward unto the law itself—to “law’s methodological autonomy” (p. 14). As Balkin pithily summarizes this recent trend among originalists like Michael Rappaport, Randy Barnett, Will Baude, and Stephen Sachs, “[N]o history gets in unless law says that it does.”⁹³

The move has an ancient lineage, conjuring an archaic image of judges and lawyers and oracular theorists as a special guardian class—elite gatekeepers protecting an inner sanctum of privileged meanings and revealed interpretations. With the advent of modern, interdisciplinary social-scientific method, however, such intellectual guild-like maneuvers have not fared especially well. A.W. Brian Simpson delivered one of the most cutting critiques of the almost antiintellectual pretension that lawyers or economists, “like some endangered species, require special protection from intrusion into their territory.”⁹⁴ As Simpson put it with characteristic wit, “The next thing will be the claim that only God can write about God, saints can write about saints, idiots about idiots, or horses about horses.”⁹⁵ Of course, no serious thinker, social scientist, or academic could earnestly believe that the latest wave of originalists has an exclusive privilege to tell us what the law is or how history gets in. As Brian Simpson understood all too well, law—like economics—also has a history and a philosophy. Consequently, some of the same historical and philosophical developments shaping modern historical practice had simultaneous and similar effects on the history and philosophy of law. Indeed, much of law’s modern history and philosophy is bound up intimately with the same movements of historicism, pragmatism, and critical realism.

Like history and the social sciences, an early twentieth century “revolt against formalism” also rocked American law and jurisprudence.⁹⁶ Antiformalism was arguably the most significant, distinctive, and still relevant turn in modern American jurisprudence, and it ultimately launched such diverse and rich fields of inquiry as historical jurisprudence, sociological jurisprudence, legal pragmatism, legal realism, socio-legal studies, critical legal studies, and modern legal history. Some of America’s most influential twentieth century legal thinkers worked in this critical tradition: Oliver Wendell Holmes, Jr., Roscoe Pound, Ernst Freund, Frank Goodnow, Jane Addams, John Dewey, Louis Brandeis, Richard T. Ely, John R. Commons, Walton Hamilton, Morris Cohen, Felix Cohen, Robert Lee Hale, Harold Laski, Wesley Hohfeld, Karl Llewellyn, Jerome Frank, and Thurman Arnold. The rise of critical realism in law brought nothing short of a modern renaissance to American jurisprudence—with massive ramifications for American politics, social life, and economic policymaking.⁹⁷

Jürgen Habermas described this revolt as “the sociological disenchantment of law,”⁹⁸ while John Dewey labeled it simply legal pragmatism.⁹⁹ Here, a more systematic historical, sociological, and philosophical skepticism generated a distinctly modernist approach to law with sharp-edged critiques of reigning natural and higher law ideas, as well as multiple other juristic attempts to assert controlling forms of transcendent legality.¹⁰⁰ As Charles Beard advanced his new economic theory of the Constitution, “[i]n the absence of a critical analysis of legal evolution, all sorts of vague abstractions dominate most of the thinking that is done in the field of law.”¹⁰¹ Following Rudolf von Jhering’s instrumental assertion that “‘law does not ‘grow,’ but is, in fact, ‘made,’”¹⁰² Beard excoriated the unrealistic, “juristic view” of a Constitution above politics: “Separated from the social and economic fabric by which it is, in part, conditioned and which, in turn, it helps to condition, it has no reality.”¹⁰³

Oliver Wendell Holmes, Jr., of course, was but the most notable scholar-jurist to take the critical-realist turn, famously declaring the life of the law to be experience not logic, history not nature.¹⁰⁴ And he was the original critic of Christopher Columbus Langdell’s attempt to assert “the methodological autonomy of law” (pp. 14, 247).¹⁰⁵ Holmes skewered that pretense: “Mr. Langdell’s ideal in the law, the end of all his striving, is the elegantia juris, or logical integrity of the system as a system. He is, perhaps, the greatest living legal theologian.”¹⁰⁶

If law was a science, it was a distinctly social kind of science, part-and-parcel of the interdisciplinary efflorescence of professional history, political economy, sociology, psychology, and even anthropology that nurtured a more critical historical-sociological analysis of law. From John Dewey’s pragmatic philosophy of law to Roscoe Pound’s sociological jurisprudence, these tendencies culminated in a more consequentialist, policy-oriented, and substantively democratic vision of legal action. That vision looked more to “the working of the law than to its abstract content”; regarded “law as a social institution which may be improved by intelligent human effort”; put increased emphasis upon “the social purposes which law subserves rather than upon sanction”; and urged “that legal precepts are to be regarded more as guides to results which are socially just and less as inflexible molds.”¹⁰⁷ The critical-realist movement in law called for “systematic and detailed applications of pragmatic conceptions and methods” to consequentially aid the public in solving problems through law.¹⁰⁸ Unless law was investigated pragmatically in society as an irreducibly social and political activity, Dewey contended, there were “scraps of paper or voices in the air but nothing that can be called law.”¹⁰⁹

These are, of course, the older and wider intellectual roots that ultimately launched American legal realism proper as well as a host of subsequent and still prospering critical social scientific approaches to law, from law and society (LSA), critical legal studies (CLS), and critical race theory (CRT) to law and political economy (LPE) and networks, platforms, and utilities (NPU).¹¹⁰ Far from being immune to history, philosophy, and critical realism, modern American law has been basically formed and reformed by and through them. And this history and philosophy accounts for the cognitive dissonance that most modern academics and intellectuals experience when asked to consider the various forms of constitutional originalism as serious intellectual (as opposed to political) projects. The overtly neo-formalist methods that originalism deploys for construing authoritative and justificatory meaning from past texts that supposedly bind us seems opposed to the entire critical thrust and spirit of modern philosophical and intellectual development since the Enlightenment and Immanuel Kant’s famous emancipatory injunction “Sapere aude! Have courage to use your own understanding!”¹¹¹ From the perspective of this longer and larger interdisciplinary history and philosophy, originalism stands out in stark relief as a revanchist “rhetoric of reaction.”

C. Jurisprudence of Reaction

In The Rhetoric of Reaction—one of his many short, brilliant books on important things—Albert Hirschman pushed beyond the many varieties of modern conservative reaction to illuminate the deeper rhetorics, structures, and strategies that united and sustained disparate efforts to roll back “enlightened” democratic reform in modern history.¹¹² Drawing on T.H. Marshall’s famous typology of progressively expanding rights (civil, political, and social) in Citizenship and Social Class, Hirshman identified three historic moments of conservative reaction: eighteenth century opposition to democratic revolution; nineteenth century opposition to the extension of voting rights; and twentieth century opposition to the progressive growth of the social-welfare state.¹¹³ In arguments about perversity, futility, and jeopardy, Hirshman uncovered a remarkably coherent and effective shared discourse of discontent—an “invented tradition”¹¹⁴ that provided a powerful template for making arguments against historic attempts at change, inclusion, and improvement.¹¹⁵

In the history of American constitutionalism, it is not difficult to identify three similarly historic moments of jurisprudential reaction against progressive social movements and reform: nineteenth century judicial opposition to antislavery and radical reconstruction; the early twentieth century emergence of Lochnerism and laissez-faire constitutionalism; and the ascendant formalism, textualism and originalism of our own time (wherein progressive, critical-realist jurisprudence seems again relegated to playing dissenting defense). Layered atop Hirschman’s rhetorical strategies of perversity, futility, and jeopardy, it is not a stretch to see the genealogy of a distinctive American “jurisprudence of reaction” growing up around the emergence in history of judicial supremacy, economic liberty, and constitutional originalism. Of course, it would take an independent volume to convincingly and historically document the rise of these legal portents of reaction. But the critical-realist recognition that we have history not nature, experience not logic, and social and political struggle not the revelation of textual meaning might provide a useful antidote to the lure of even big-tent originalism.

Jack Balkin’s Memory and Authority, especially when read in tandem with Living Originalism, provides arguably the most attractive version of originalism for those still working pragmatically in modern critical-realist modes of thought. Like many of our colleague-advocates now producing historians’ amicus briefs, Balkin tries to make peaceful do with originalism, creating additional room for historical maneuver within the reigning paradigm, and even trying to see both sides of the coin—uniting seeming opposites in that noble dream of a liberal or living originalism. But it’s a devil’s bargain. From the perspective of the long history and philosophy of the politics of American law, originalism is not a solution to be worked with, but the latest jurisprudential front in an ongoing struggle against forces of reaction. In the epic battles surely ahead, rather than further legitimate and entrench a reactionary formalism, legal progressives would be better advised to rebuild the critical traditions of historicism, pragmatism, and realism suited to the modernist challenges of the 21st century.

* Charles F. and Edith J. Clyne Professor of Law, University of Michigan. Special thanks to Kate Andrias, Nick Bagley, Jud Campbell, Saul Cornell, Heather Foster, Jonathan Gienapp, Don Herzog, Jim Kloppenberg, Julian Mortenson, Richard Primus, Steve Sawyer, Elena Schultz, Jim Sparrow, Karen Tani, Grace Vedock, and Jack Webb.