Projecting the Past Into the Future of Constitutionalism: History, Atemporality, and American Society

The U.S. Supreme Court is increasingly asserting “history and tradition” as the standard to settle divisive constitutional debates on abortion, guns, and beyond. As scholars debate this shift, Jack Balkin’s book Memory and Authority stands out in exploring the role of history in American constitutionalism. However, its account should be situated in a larger sociohistorical context. This Article explores features of the historiography and social fabric of the United States that shed light on the distinctive weight of history in American constitutionalism.

In particular, the modern divide between living constitutionalism and originalism echoes two earlier divides in American history: the disagreement over the nature of “American exceptionalism” and the split of American Christianity into modernist and traditionalist currents. Even as societal polarization has surged in recent decades, Americans still tend to share a civil religion. This relatively bipartisan and ecumenical form of American patriotism or nationalism is rooted in the celebration of the Founding Fathers, although conservatives and liberals have again diverged on lessons to be learned from these past figures. Despite the transformations brought by modernity and a polarizing America, its constitutional debate has acquired an atemporal quality given the recurrence of divides over original intent and national traditions. Time passes, circumstances change, yet similar fractures persist.

Ultimately, a growing focus on the past may further incentivize reliance on history as a central method of constitutional interpretation, as parties may fear being at a disadvantage if they fail to do so. Besides the risk of instrumentalizing the past, this approach may undermine the value of history when it seemingly lacks an immediate practical purpose, thereby exacerbating the wider decline of the humanities. While historical research may certainly enhance legal decision-making, studying and understanding the past is inherently valuable.

Introduction

Memory and Authority insightfully explores the role of history in American constitutionalism.¹ An observer unfamiliar with the U.S. legal landscape might assume that there is little to add after reading Jack Balkin’s comprehensive book. In reality, it will plausibly be followed by efforts to treat the subject as exhaustively, thereby adding to the voluminous literature on originalism and living constitutionalism. Why is this so? Balkin offers a convincing answer when explaining that this debate is an attempt to “negotiate an ever-changing present with a centuries-old Constitution.”² Indeed, America has the world’s oldest written constitution, as well as one of those most difficult to amend.³ Another distinctive feature of the United States is “its quasi-religious veneration of its framers and founders—not necessarily as they were understood in the past or in their own time but as they are understood in the present,” Balkin writes.⁴ In other words, when someone invokes the nation’s framers and founders it tells us as much, if not more, about that person and their present as about these past figures.

Our observer might still wonder whether future generations of Americans will keep focusing on the views of framers from the eighteenth and nineteenth centuries to settle arguments in the late twenty-first century, twenty-second century, twenty-third century, and so forth. Surely, the world of tomorrow would seem exceedingly difficult to imagine to most of us today, let alone to those who lived generations ago. Illustratively, the scientist Ray Kurzweil depicts a not-too-distant future where human brains will be augmented by implanted artificial intelligence (AI), revolutionizing life as we know it: “The future is clear: minds based only on the organic substrates of biological brains can’t hope to keep up with minds augmented by nonbiological precision nanoengineering.”⁵ Kurzweil foresees that in the next few decades “this superintelligence we are creating will directly be part of our brain[s], at least through these connections to the cloud.”⁶ Even if Kurzweil proves wrong, the more our observer mulls the future, the more it would seem like a distant foreign country.

As our observer gains familiarity with the U.S. legal landscape, they might ponder whether any future transformations would actually lead the focus on original intent to diminish. After all, at the dawn of the twenty-first century, invoking the authority of past framers seems to be more influential than ever. Why would this change decades or centuries in the future? The inventions and developments of the future do not change the wisdom of the past, one might say. Similarly, the fact that Christianity still plays a significant role in the world two millennia after the age of its framer shows that the passage of time does not necessarily dispel an idea. To the faithful, the passage of time only strengthens its promise.

For living constitutionalism, the tension between the past and present will only intensify as each year passes, pulling the future farther and farther away from the past. If in 2025 it seems peculiar or wrong to focus narrowly on the original intent of the Bill of Rights ratified in 1791 or the Fourteenth Amendment ratified in 1868, that tension will only intensify by 2050 or 3000 as we enter the next millennium. For originalism, however, no such tension exists. Original intent does not change with the passage of time. One quality of originalism is that it is both centered in the past and atemporal. That feature can make it both rigid and supple.

The divide between living constitutionalism and originalism parallels the divide between modernism and traditionalism. Each pair shares a symmetry, as its elements are defined in opposition to one another. Originalism partly aims to remedy the ills of living constitutionalism and vice versa. By the same token, traditionalist movements are often anti-modernist at their core, just as modernist outlooks stand against certain dimensions of the past.⁷

In particular, originalism and traditionalism share a focus on eternal values that echoes James Davison Hunter’s definition of “transcendent authority,”—namely a belief in “a consistent, unchangeable measure of value, purpose, goodness, and identity, both personal and collective.”⁸ This transcendent authority “tells us what is good, what is true, how we should live, and who we are. It is an authority that is sufficient for all time.”⁹

Hence, our observer may conclude that, for stricter forms of originalism, it is a nonissue whether we are in 2025, 2050 or the year 3000. Following the framers’ transcendent authority will remain paramount. Asking how long this endless debate will last and whether it could even persist in an AI-dominated future is an atypical question, but it can help us identify the debate’s atemporality. By “atemporal,” I mean that the debate recurs in similar ways in different epochs. That does not signify that the debate always remains identical and that new developments or historical circumstances have no bearing.¹⁰ Rather, certain lines of argument recur as if they possessed a timeless nature or existed out of time. The same lines of argument adapt to changing situations. Time passes, but the debate does not.

For generations, Americans have not merely been debating their Founding Fathers’ original intent, but also other issues that remain at the heart of debates today, such as the legitimacy of “tradition”¹¹ or the appropriate “level of generality” in textual interpretation.¹² American constitutionalism thus appears partly locked in this repetitive debate—notwithstanding change wrought by new presidential elections, Supreme Court appointments, and decisions that set or undo landmark precedents. Insofar as American constitutionalism has become stuck in this debate, it may be understood as a dimension of a wider social phenomenon: the polarization of the United States. By delving beyond the law and examining the fabric of America, this Article explores neglected historical and societal dynamics behind the constitutional divide.

The question is pressing, as the “observer” with which the Article begins personifies the countless Americans and people across the world who have sought to grasp why the original intent of past framers holds extraordinary weight in the modern U.S. legal, social, and political debate.¹³ While most U.S. liberals tend to disagree with this method, its influence has contributed to the development of liberal forms of originalism.¹⁴ The stakes are high given the emphasis that the Supreme Court has placed on this approach.

The thoughtful symposium that led to this Article reflected how Memory and Authority should prove a stimulating source for anyone wishing to engage with these questions. In his latest book, Jack Balkin skillfully argues that original intent is not only for originalists and that non-originalists are at disadvantage if they fail to engage in this ongoing debate.¹⁵ Balkin presents multiple frameworks to analyze the subject, such as thinking of American constitutionalism as having “a dialectical tradition.”¹⁶ As I have described elsewhere, a dialectic may be understood as having three steps: thesis, antithesis, and synthesis.¹⁷ The synthesis stems from the opposition of the thesis and antithesis, an argument and counterargument.¹⁸ Balkin conveys this dynamic by casting the U.S. Constitution as an “intergenerational project” built over time through “competing ideas.”¹⁹ By contrast, he argues that conservative originalism defends “a unitary tradition” based on a narrow and oft-inaccurate view of the past.²⁰

This dialectic is at the heart of Balkin’s “own theory of constitutional interpretation, living originalism or framework originalism, [which] does not view originalism and living constitutionalism as opposed. It synthesizes these two positions, seeing them as two sides of a single coin.”²¹ If originalism and living constitutionalism are “twins separated at birth,” in Balkin’s evocative phrase,²² these twins were adopted by parents with distinct aspirations.

As for “history and tradition,” I would suggest that it is a sibling of originalism not separated at birth. The Dobbs decision that overruled the right to abortion once recognized in Roe v. Wade²³ employed the history-and-tradition test,²⁴ sparking a scholarly debate about its roots and whether it is tantamount to originalism.²⁵ In any event, the Dobbs dissenters challenged the majority in ways echoing longstanding criticisms of originalism: “The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply.”²⁶ “[T]he majority’s commitment to replicate in 2022 every view about the meaning of liberty held in 1868 has precious little to recommend it.”²⁷ The dissenters instead defended living constitutionalism,²⁸ whereas the majority had insisted that “the most important historical fact [is] how the States regulated abortion when the Fourteenth Amendment was adopted.”²⁹

Ironically, tradition is chronically invoked in an age of unprecedented transformations for the United States. It remains to be seen whether history as a method of constitutional interpretation could someday protect American democracy from the growing power of authoritarian populism and demagogy, or whether history will be weaponized to enable this shift.³⁰ Memory and Authority does not address this matter, but it will be a crucial question in years to come given the trend toward illiberal democracy in modern America.

This Article situates the ongoing constitutional debate in the wider historiography, intellectual history, and social fabric of the United States. First, it briefly maps how debates between originalists and living constitutionalists evoke erstwhile debates about the nature of “American exceptionalism.” Second, the Article shows how the debate between originalists and living constitutionalists also parallels divides in the history of American Christianity, especially the split between religious traditionalists and modernists. Third, I suggest that the concept of “civil religion” is helpful to understand the attraction to the Founding Fathers in American constitutionalism. Fourth, my contribution ends by discussing the inherent value of history and risks associated with its instrumentalization.

I. From American Exceptionalism to American History

My scholarship has explored the concept of “American exceptionalism” through two definitions. First, its comparative definition refers to the ways in which America is objectively an “exception” compared to other Western democracies³¹ or the wider world, based on quantitative or qualitative evidence.³² This is not a normative definition, as people may disagree on whether features of American exceptionalism are positive or negative. For instance, the United States has the highest number of guns per capita worldwide³³ and is the only Western democracy to retain the death penalty,³⁴ for better or worse. Second, the ideological definition of American exceptionalism refers to a belief in the greatness or superiority of the United States, which often encompasses the notion that God chose America to be a beacon of light to the world.³⁵ These two separate definitions can overlap as in a Venn diagram, because certain beliefs or ideological convictions about America may shape distinctive societal features.

Balkin’s book speaks to both definitions of American exceptionalism and their overlap. First, he describes how the uses of history in American law are comparatively distinctive, as exemplified by how originalism scarcely exists outside the United States.³⁶ Second, Balkin explores how this social phenomenon reflects ideological convictions about the Founding Fathers and the United States.³⁷

Memory and Authority captures the popular image of the American people, nation, and Constitution being simultaneously born in the founding—“this revolutionary act was a self-creation, in which Americans acted as the midwife to their own birth.”³⁸ But that national origin story “collapses” distinct events, such as the Declaration of Independence in 1776 and creation of the U.S. Constitution in 1787, while erasing the failed Articles of Confederation and those excluded from “We the People.”³⁹ This worldview shapes constitutional debates, especially the weight of originalism in modern America, which should not be thought of “primarily as a theory of interpretation,” but rather “as a cultural narrative.”⁴⁰

Balkin instead proposes an understanding of U.S. constitutional history that (i) acknowledges the contributions of the Founding Fathers without beatifying them; (ii) expands our understanding of the framers of constitutional meaning by including neglected stakeholders, such as minorities and women; and (iii) broadens our perspective on constitutional history by deemphasizing the founding era to an extent while stressing other relevant histories.⁴¹

Here, I wish to draw a parallel with the debate over the nature of “American exceptionalism,” although I cannot recount this complex intellectual history in a short paper. In the second half of the twentieth century, U.S. historians debated whether misconceived ideas about “American exceptionalism” had marred their field.⁴² Before the founding, this ideology had envisioned America as a tabula rasa without Indigenous peoples—a bountiful, barren land bestowed by God for a new path.⁴³ After the creation of the United States, America was increasingly defined in opposition to the “Old World” and its failures—a nation born of liberty and freed from the “rules of history.”⁴⁴ Over time, U.S. historians came to challenge this understanding of the American Revolution and Founding Fathers as ethnocentrism or nationalism.⁴⁵ This was among the dynamics that fostered greater scholarly attention to the histories of minorities and women, as well as to transnational approaches, such as the place of the United States in “Atlantic history.”⁴⁶

Not all historians agreed that the concept of “American exceptionalism” was irremediably tainted, as Jack Greene illustratively insisted that research should differentiate features that made America objectively exceptional from misconceptions rooted in “parochialism or chauvinism.”⁴⁷ In doing so, Greene mirrored scholars in many other fields (e.g., law,⁴⁸ political science,⁴⁹ sociology,⁵⁰ economics,⁵¹ criminology,⁵² and international relations⁵³) who have employed the concept to analyze areas where America is factually an “exception” based on qualitative or quantitative evidence.⁵⁴

This debate over “American exceptionalism” is analogous to debates that Balkin analyzes in depth in Memory and Authority, especially the divide over how to think about the founding. However, the reverence of the Founding Fathers is a longstanding phenomenon in U.S. history, whereas the advent of originalism as a general theory of constitutional interpretation is a more recent phenomenon, which emerged in the twentieth century and grew more influential in the twenty-first century.⁵⁵ Balkin traces this shift to mounting tensions in American society, such as over the New Deal, racial desegregation, the Sexual Revolution, and gay rights movement.⁵⁶ These social shifts spurred “conservative countermobilizations” with “a repeated longing to regain the past and its authority, even in an imagined form,” which Balkin associates with originalism.⁵⁷

Interestingly, the U.S. conservative movement began marshaling the separate ideological definition of “American exceptionalism”—faith in the nation’s superiority—in resistance to the Obama presidency, which it accused of betraying the Founding Fathers and their ideals.⁵⁸ Before then, the phrase “American exceptionalism” was hardly used in U.S. politics and public discourse, as for decades “American exceptionalism” was especially studied by academics who employed it in the comparative sense of America being an “exception” when researching and theorizing its distinctive evolution.⁵⁹ In sum, the same movement that has advocated originalism in the political arena also came to advocate “American exceptionalism” in the ideological sense in defense of national superiority and against allegedly un-American or foreign influences.⁶⁰

Relatedly, Balkin observes that “[c]onservative originalism does not separate constitutional law from constitutional politics. It allows constitutional law to speak constitutional politics. And it helps the Constitution keep up with the changing values and mores of conservatives.”⁶¹ My theory on the modern U.S. gun rights movement exemplifies this phenomenon, as I have described how historical claims about the Second Amendment blend with the conviction that an unbridled right to bear arms is a pillar of conservative and national identity.⁶² It is no coincidence that the Supreme Court has gravitated toward this historical interpretation of the Second Amendment⁶³ in the same period when the gun lobby and gun-rights movement grew increasingly powerful. These circumstances made America an outlier internationally in having the highest number of guns per capita worldwide and remarkably limited regulations, regardless of a comparatively high homicide rate and recurrent mass shootings.⁶⁴

Notwithstanding the rarity of originalism abroad,⁶⁵ Americans are not absolutely alone in imagining a straight line of their legal system to past centuries or the Enlightenment. For example, modern France regularly proclaims the heritage of the French Revolution in spite of the multiple regimes it experienced in its unstable aftermath.⁶⁶ The Declaration of the Rights of Man and the Citizen of 1789 did not become part of the “bloc de constitutionnalité” (constitutional bloc) until 1971 under the Fifth Republic, established in 1958.⁶⁷ Still, America stands out in having the world’s oldest written constitution,⁶⁸ which encourages repeated invocations of the distant past in U.S. constitutional debates, unlike in France.

Balkin draws his own comparisons with France to convey how the fusion of nationhood and constitutionalism in the American psyche is distinctive, even though the American and French Revolutions occurred in the same age.⁶⁹ The French people, state, and nation existed before the French Revolution of 1789, which did not create France’s current, 1958 constitution.⁷⁰ This constitution is not remotely at the heart of French national identity, as it is one of multiple constitutions and political systems in the postrevolutionary era.⁷¹ In contrast, “Americans claim to have had only one republic and one Constitution, despite the previous failure of the Articles of Confederation, the constitutional breakdown of the Civil War, and the twentieth-century transformations of the New Deal and the national security state.”⁷² “No matter how much America changes, Americans continue to insist that they have had only one republic, one Constitution” that were created alongside the American people at the founding moment.⁷³ I would add that these features reflect the overlap between the comparative and ideological dimensions of American exceptionalism, as distinctive social characteristics can influence distinctive beliefs and vice versa.

II. From Legal History to Religious History

This section explores how the divide between originalists and living constitutionalists parallels divides in the history of American Christianity, especially the split between religious traditionalists and modernists. Tellingly, the American constitutional landscape does not only stand out for its reverence of past framers,⁷⁴ but also for the belief that they were divinely inspired. This conviction plausibly intensifies the authority of the Founding Fathers in the eyes of many. Approximately 55 percent of Americans “believe the U.S. Constitution was inspired by God.”⁷⁵ Moreover, 60 percent think “the founders of America originally intended for the U.S. to be a ‘Christian nation,’” whereas 45 percent think it “should be.”⁷⁶ While these are not polls of jurists engaged in legal advocacy or decision-making, they speak to America’s distinctive religious landscape.

Balkin brings religion to mind when positing that “[o]riginalist arguments are . . . ‘obedient’ uses of history.”⁷⁷ This evokes the notion that one must obey the Founding Fathers as one would God. Even though traditionalist originalism claims that judges have no choice in the matter, as judges must simply follow authority, this approach requires human agency in choosing how to interpret history and tradition. “Originalism emphasizes that we must restore what was lost, return to ancient verities, and respect long-standing traditions.”⁷⁸ In practice, this can entail making “the past speak our normative values in the form of commands so that we can obey them.”⁷⁹ From this angle, traditionalist originalism may be understood as a discourse of legitimation. Yet “history is a resource, not a command,” Balkin stresses.⁸⁰ In his view, originalism is analogous to religious fundamentalism in that they both stem from “crises of modernity,” reflecting attempts to reclaim a past seemingly “lost” or “threatened” by modern forces.⁸¹

In my view, a parallel exists between the split of originalism and living constitutionalism, and between the split of traditionalist and modernist currents in American Christianity. Originalism and religious traditionalism or fundamentalism share a focus on textualism, literalism, and restoring a hallowed past. Conversely, living constitutionalism and religious modernism share a focus on the notion that fundamental principles should be amenable to change in light of new understandings and changing social mores.

The advent of modernity led to a crisis in American Protestantism in the late nineteenth and early twentieth centuries.⁸² “By the 1920s a militant wing of conservatives emerged and took the name fundamentalist,” the historian George Marsden recounts.⁸³ The term was not disparaging and referred to an evangelical effort to shield the fundamentals of Christianity from modern influences, such as Darwin’s theory of evolution and historical criticism questioning the literal truth of scripture.⁸⁴ This movement “oversaw the publication between 1910 and 1915 of the widely-distributed twelve-volume paperback series, The Fundamentals,” which featured “a considerable variety of antimodernist spokespersons.”⁸⁵ By contrast, liberal Christians adapted to modernity by concluding that their faith did not depend on the Bible being “proven historically or scientifically accurate.”⁸⁶

By the second half of the twentieth century, the anti-modernist current became more ecumenical with the birth of the Religious Right. Conservative Protestants and Catholics notably found common ground during the Reagan Revolution, thereby transcending the past Protestant-Catholic divide.⁸⁷ Meanwhile, the modernist current in American Christianity remained influential as liberal-to-moderate Protestants or Catholics felt that faith needed to adapt to new scientific understandings and the liberalization of social mores, such as the widening recognition of gay rights and reproductive rights.⁸⁸

One might ask where nonbelievers fit in this analysis. The answer is tied to another feature of American exceptionalism in the comparative sense, namely a high degree of religiosity relative to other modern Western democracies.⁸⁹ Atheists and agnostics are therefore a limited segment of the U.S. population compared to other Western societies, where secularism and religious skepticism are more influential.⁹⁰ Even though the proportion of Americans without a formal religious affiliation has grown to 28 percent, most of those in this group actually believe in God.⁹¹ Put otherwise, the main divide over religion in modern American is among believers, especially between the modernist and traditionalist, ultra-traditionalist or fundamentalist currents of Christianity.⁹² This religious divide echoes many of the themes that split originalists and living constitutionalists.

Besides the aforesaid definition of “transcendent authority” in the traditionalist worldview,⁹³ James Davison Hunter offered a definition of “cultural progressivism” that is helpful to analyze modernist movements.⁹⁴ In addition to “a spirit of rationalism and subjectivism,” this outlook holds that “truth tends to be viewed as a process, as a reality that is ever unfolding.”⁹⁵ The modernist outlook is not necessarily secular or atheistic in character, as it encompasses people of faith: “For them, one may note a strong tendency to translate the moral ideals of a religious tradition so that they conform to and legitimate the contemporary zeitgeist,” meaning a “tendency to resymbolize historic faiths” in accordance with modernity.⁹⁶ This framework suggests a convergence between religious modernism and cultural progressivism.

Accordingly, the relevant parallel is not solely between originalism and religious traditionalism, but also between living constitutionalism and religious modernism. The latter pair shares a non-literal interpretation of text and belief in evolving norms based on general guiding principles. Balkin indeed cites Franklin Delano Roosevelt’s own comparison of the Bible to the Constitution when condemning a Supreme Court bent on striking New Deal legislation.⁹⁷ To FDR, the Constitution was “a charter of general principles” whose understanding should evolve with American society.⁹⁸ A century later, this debate remains omnipresent in American constitutionalism, whose latest divides can seem variations on a recurring theme.

III. From Law to Civil Religion

The concept of “civil religion” or “civic religion” only briefly appears in Memory and Authority.⁹⁹ A fuller discussion will situate this facet of the book’s thesis in the nation’s social fabric.

The sociologist Robert Bellah popularized the concept of “civil religion” in a 1967 article.¹⁰⁰ “Civil religion” should not be conflated with “religion,” as it is instead a form of patriotism or nationalism employed by both Democratic and Republican politicians, such as Ronald Reagan¹⁰¹ and Barack Obama.¹⁰² Civil religion reflects a set of ideals about America, especially notions of chosenness, specialness, or mission.¹⁰³ These beliefs are not genuinely universal given their monotheistic references to “God,” which exclude both nonbelievers and Americans from polytheist traditions. Still, they are relatively ecumenical and bipartisan. Many themes in Memory and Authority would not be significant in a society without this influential civil religion, as Balkin does not draw upon Bellah but echoes him in identifying the Declaration of Independence and U.S. Constitution as “scripture.”¹⁰⁴

While civil religion is a relative constant in American history, conceptions of nationhood have shifted over time. Balkin convincingly insists that “We the People” is a “transhistorical subject” not limited to the Founding Fathers in the late eighteenth century.¹⁰⁵ Among others, “[t]he views of enslaved and free Black people before the Civil War, and of women before the Nineteenth Amendment, are part of the dialectical tradition of American constitutionalism.”¹⁰⁶ Balkin brings to mind the dissenters in Dobbs, who likewise underscored that “the constitutional ‘tradition’ of this country is not captured whole at a single moment.”¹⁰⁷

Art is among the elements found in Balkin’s definition of “collective memory,” which consists of “shared beliefs about the past.”¹⁰⁸ As “[o]ne cannot remember everything,” society engages in “selective remembering and forgetting.”¹⁰⁹ Here, I will highlight how American civil religion promotes this practice. Although Balkin does not mention the musical Hamilton, its resounding success exemplifies one of his points: “[E]ach generation must actually have a hand in building out the Constitution they live under . . . not merely the adopting generation.”¹¹⁰ Hamilton blends a Broadway-musical style and hip-hop to recount the American Revolution with a racially diverse cast playing the Founding Fathers, including Alexander Hamilton, George Washington, Thomas Jefferson, and James Madison. Based on the biography by Ron Chernow, Hamilton was created by Lin-Manuel Miranda, who is of Puerto Rican descent.¹¹¹ The musical has broadened the appeal of the Founding Fathers to modern generations and minority groups.¹¹²

At the same time, this approach risks occluding the past and its stratifications. The historian Renee Romano is among those who have raised the question, “What does it mean to be raising a generation of kids . . . to think that George Washington could have been black?¹¹³ Of course, the U.S. President could not have been in that epoch. Yet today this is possible and it has already occurred. While the musical only engages superficially with the question of slavery,¹¹⁴ it symbolizes the evolving nature of American civil religion and how future generations can come to identify with the nation’s past, drawing upon it to inspire the future.

Aaron Copland’s Lincoln Portrait further illustrates this social dynamic. Composed during World War II with patriotic aspirations, this 1942 artwork addresses the Civil War and American ideals through an original blend of symphonic music and quotations of Abraham Lincoln.¹¹⁵ As multiple orchestras came to perform Lincoln Portrait over time, numerous orators have been invited to deliver Lincoln’s quotations, including prominent African Americans, such as Barack Obama,¹¹⁶ Maya Angelou,¹¹⁷ James Earl Jones,¹¹⁸ Phylicia Rashad,¹¹⁹ and Julius Erving, who gave the best performance in my view.¹²⁰ Copland’s heroic portrayal does not address Lincoln’s ambivalence toward emancipation¹²¹ or his role in the continuing colonization of Indigenous territory as the United States kept expanding westward in the name of its Manifest Destiny.¹²² Nevertheless, the composition embodies how future generations of all stripes have a stake in America’s past while advancing the view that, at his best, Lincoln represented the best of America.

Although Hamilton and Lincoln Portrait oversimplify an intricate history, as popular or artistic representations of the past sometimes do, they epitomize the weight of the Founding Fathers and Lincoln as national heroes in American political culture. This civil religion is intertwined with conceptions of constitutionalism that Balkin himself explores:

Staking a claim to the past is not alien to the idea of a living Constitution; it is how a living Constitution operates. Living constitutionalists score no theoretical points for refusing to engage in originalist styles of argument. All that one achieves is to limit the ability to draw on powerful symbols of ethos, tradition, and honored authority. And this is no small cost, because what is often at stake in debates over constitutional interpretation is whose version of history will shape political and legal discussion and whose memory of the past will be heard.¹²³

An opposite trend consists in eliminating certain dimensions of the past, such as buildings named after Lincoln and the Founding Fathers¹²⁴ or the teaching of classics at universities¹²⁵ on the ground that doing so promotes a legacy of racial prejudice. Balkin is among the scholars who instead invite us to be mindful of the past, including its injustices and their legacy, rather than expunge it. In other words, the past should be problematized to better analyze it and build a brighter future. Balkin further suggests that the past cannot be reduced to a history of injustice and that future generations should therefore consider how to draw upon certain elements of the past, including insights from the Founding Fathers. This view seems consistent with how most Americans approach the framers in practice. “Americans both admire and criticize the people who adopted the U.S. Constitution,” as Balkin notes.¹²⁶ Perceiving them as heroes or antiheroes may depend on the issue, as the same people who praise their stand in the American Revolution may condemn their stance on slavery.¹²⁷

A remaining question is where to draw the line between patriotism—loving one’s country—and nationalism—the belief that one’s country is superior. The last belief has played a role in modern constitutional controversies. Proponents of living constitutionalism—especially Justices Anthony Kennedy, Stephen Breyer, and Ruth Bader Ginsburg—have welcomed the use of international standards among diverse sources of persuasive authority.¹²⁸ They have faced challenges from originalists contending that international standards are irrelevant, even though both conservative and liberal Justices had considered them for generations.¹²⁹ American constitutionalism has nothing to learn from foreign countries, some politicians added.¹³⁰ The more people revere past framers for their unparalleled wisdom, if not divine inspiration,¹³¹ the more they may hold this attitude toward the outside world.

Notwithstanding its limitations, American civil religion has led both U.S. conservatives and liberals to converge in celebrating the Founding Fathers and Lincoln, even as they often disagree on the lessons to draw from the past. Given the interplay between American political culture and American constitutionalism, how the country remembers the past and how it thinks of its heroes will help shape the constitutional future.

IV. The Value of History

Paradoxically, the U.S. Supreme Court is making history a centerpiece of its constitutional analysis even though historians recurrently find that it misunderstands or misuses history.¹³² It would be as if the Court chose science as its methodology only to be called to task by concerned scientists. This final section discusses these pitfalls and prospective remedies.

The bipartisan dimensions of American civil religion, including both sides’ efforts to claim the Founding Fathers, are relevant to one of Memory and Authority’s central points: “Refusing to claim the past for oneself means accepting other people’s versions. Those who will not deign to speak in the name of tradition and cultural memory will have tradition and cultural memory deployed against them.”¹³³ This historical approach to American constitutionalism risks becoming a catchall. Balkin does not suggest that history is fully or largely irrelevant to certain constitutional questions. Rather, he reminds readers that originalists will keep marshaling historical arguments and that those who disagree with them should therefore also engage with this question.¹³⁴ Failing to do so could put them at a disadvantage, leading to an arms race where everyone must muster their best possible historical claims. This could create a practice or norm under which history is dominant and omnipresent in constitutional analysis, reinforcing the focus on the views of framers from the eighteenth and nineteenth centuries.

To his credit, Balkin discusses at length risks associated with the instrumentalization of legal history, such as when depicting “memory entrepreneurs” who “try to change memory and narratives of the past¹³⁵ or the use of originalist rhetoric “not to preserve existing traditions but to transform them.”¹³⁶ His framework acknowledges that historical records can present ambiguities or grey areas.¹³⁷ Balkin equally recognizes that his theory involves human agency, as he emphasizes that we must make choices in our constitutional interpretation.¹³⁸ In fact, he engages in depth with the debate between lawyers and historians regarding the proper use of history.¹³⁹

Hence, Memory and Authority simultaneously encourages the use of history in constitutionalism and warns against its misuse. Its examples convey how broad or narrow conceptions of tradition can spell drastically different outcomes: Justice Samuel Alito invoked tradition in Dobbs to eliminate the constitutional right to abortion once recognized in Roe, whereas Justice Anthony Kennedy previously invoked the age-old tradition of liberty to justify a constitutional right to same-sex marriage in Obergefell.¹⁴⁰ Presenting history at “varying levels of generality” leads to divergent conclusions, Balkin explains, “[b]ecause traditions contain multiple and conflicting elements”¹⁴¹ —they are polymorphic.

A pragmatist would join Balkin in saying that one must be mindful of the past to avoid giving a monopoly on the past to those with whom we might disagree. But a pragmatist would likewise caution that the use of history cannot resolve a divide rooted elsewhere. In a hyper-polarized modern America, distinct worldviews commonly lead to distinct uses of history. Better uses of history are thus unlikely to resolve divides over intricate questions like abortion.

Even so, several of Balkin’s points could be understood as remedies to America’s hyper-polarization. For instance, Balkin writes that “[o]riginalists and nonoriginalists can exist in the same legal culture because both use the same basic kinds of arguments but simply accord them different weight and importance.”¹⁴² “I believe that originalism and living constitutionalism are fully compatible positions,” he declares, when defending his theory of living originalism or framework originalism.¹⁴³ Some would disagree but efforts to find common ground are praiseworthy in the age of hyper-polarization.

All in all, our present might always affect how we engage with our past. According to Lucien Febvre, the co-founder of the Annales School, “[t]here is no history except of the present,” because,

[w]hether historians or laypeople, we cannot hope to enter into direct contact with the past and to bring it back to life; we can only imagine it for ourselves, or rather, actualize it on the basis of the questions and the state of mind that our own age suggests to us.¹⁴⁴

If understanding the past is consequently a challenge for future generations, rigorous scholarship can help bring us closer to this goal.

However, the grave erosion of social trust in a hyper-polarized America with an influential authoritarian movement could foster the notion that history too should be distrusted, if not weaponized with emerging technologies. George Orwell painted this dystopia in 1984 with words that Winston, the main protagonist, is forced to repeat: “Who controls the past controls the future; who controls the present controls the past.”¹⁴⁵ O’Brien, his cynical interrogator, cast history as only an instrument: “Does the past exist concretely, in space? Is there somewhere or other a place, a world of solid objects, where the past is still happening? . . . We, the Party, control all records, and we control all memories. Then we control the past, do we not?”¹⁴⁶

While a dystopia is only one of several possible futures, the instrumentalization of history raises other questions in a peaceful democracy. In particular, the focus on building a “usable past” risks reducing the study of history to practical applications. Yet much of historical research, whether in law or beyond, lacks clear immediate applications in the “real world.” Scores of historians in America and abroad study distant epochs, from Antiquity to the Middle Ages, to better understand them per se. Similarly, the many historians who study generations closer to our time are not necessarily animated by the notion that their research will contribute to legal, political or social reform in the present. One could cite myriad historical works that are not “usable” in a legal sense.

Understanding and analyzing the past is valuable for its own sake. A search for knowledge guided by intellectual curiosity is among the greatest human qualities. Of course, a well-rounded education in history and other fields has the capacity to enhance our analytical abilities. In-depth historical scholarship can likewise sharpen our insights. But history is intrinsically valuable, just as art and the humanities, irrespective of its many tangible benefits.

If it is understandable that jurists aspire to find a “usable past” to inform legal decision-making, we must nonetheless remember that much of history will not fit this purpose. Without this awareness, the value of history in general and legal history in particular risks being increasingly called into question just as the humanities have.¹⁴⁷ This trend could exacerbate the “suspicion of the life of the mind” that the historian Richard Hofstadter depicted among the features of a subculture of anti-intellectualism in American society,¹⁴⁸ which has grown more influential in modern times than when he penned his essay in 1963.¹⁴⁹ “In American public discourse one of the tests to which intellect is constantly submitted when it is, so to speak, on trial is this criterion of practicality,” Hofstadter underlined.¹⁵⁰ While Memory and Authority nowhere implies that history would lack value if it were not “usable,” the social trends it documents could foster this mindset.

Memory and Authority is ultimately a learned book that contributes handily to the understanding of American society in addition to offering practical solutions. It may someday become part of the historiography and intellectual history of our age. As future generations try to make sense of our time and its peculiar debates, Balkin’s book will provide part of the answer.

Conclusion

This Article began by asking how long this endless constitutional debate will last in the United States. In 2050, should American judges keep focusing on the original intent of people who lived in 1791 or 1868? What about in 2070, 3000 or 3050? These questions shed light on the debate’s atemporality. The divide over the Founding Fathers’ original intent may well persist in a radically different future. To some, this focus may appear more and more anachronistic as time passes. To others, holding on to original intent will seem more important than ever, as it will anchor us in tradition and prevent us from losing ourselves in changing times.

Indeed, even an AI-dominated future or dystopia might reinforce traditionalist mindsets. One of the counterarguments that Ray Kurzweil addresses in predicting a looming future where human brains will be incrementally implanted with AI is whether people need a deeper purpose: “If AIs can do everything that humans can do in every intellectual sphere, and do it far better than the best humans and at far greater speeds, what is there for humans to do that will give us meaning?”¹⁵¹ “Well, that’s why we want to merge with the intelligence we are creating,” Kurzweil answers.¹⁵² “The AIs will become part of us, and thus it is we who will be doing those things.”¹⁵³

Such a future would plausibly leave many disoriented. Efforts to seek the firm footing of the past might therefore still play a significant role in America in coming generations, irrespective of leaps in technology. After all, the advent of modernity in the United States has not simply spelled an end to traditionalist or ultra-traditionalist mindsets, which endured in different forms in the aftermath of the Industrial Revolution, Scientific Revolution, Sexual Revolution, and every other transformation.

In the end, modern American history has been shaped by dramatic transformations. But the ways that history is employed in American constitutionalism have not changed quite as much. A divide over the Founding Fathers’ original intent and the nation’s traditions has recurred through changing times as successive generations have marshaled similar arguments in new situations. This dimension of the U.S. constitutional debate has acquired an atemporal quality.

1. Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (2024). ↩︎
2. Id. at 58. ↩︎
3. Id. at 67, 134. ↩︎
4. Id. at 36. ↩︎
5. Ray Kurzweil, The Singularity Is Nearer: When We Merge with AI 246 (2024). ↩︎
6. Id. at 287. ↩︎
7. See Balkin, supra note 1, at 69 (describing the “crisis of constitutional modernity”); Mugambi Jouet, Exceptional America: What Divides Americans from the World and from Each Other 86-88 (2017) (highlighting the schism between fundamentalists and modernists within Christianity). ↩︎
8. James Davison Hunter, Culture Wars: The Struggle to Define America 44 (1991). ↩︎
9. Id. ↩︎
10. Emblematically, the history of abortion in America has not been static, irrespective of recurring constitutional debates, as I describe in a pair of articles. See generally Mugambi Jouet, Abortion and American Exceptionalism, Crim. Just. L. Rev. (forthcoming 2025), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4977441 [https://perma.cc/4QME-MWQM]; Mugambi Jouet, A History of Post-Roe America and Canada: From Intertwined Abortion Battles to Dobbs, Nw. J. Hum. Rts. (forthcoming 2025), https://papers.ssrn.com/sol3/papers.cfm?‌abstract_id=4430602 [https://perma.cc/A7PV-7YR3]. ↩︎
11. In a 1993 article, for example, Rebecca Brown had observed that “tradition” is “an important source of authority for almost all schools of constitutional interpretation,” including originalism, textualism, and their opponents. Rebecca L. Brown, Tradition and Insight, 103 Yale L.J. 177, 178 (1993). “For some, tradition is determinative; these I call traditionalists,” Brown wrote. Id. “For others—I will call them rejectionists—tradition is irrelevant to the constitutional inquiry. For still others, who I suspect form the vast majority, tradition is a powerful rhetorical device . . . .” Id. Over three decades later, these debates remain at the heart of American constitutionalism, as reflected in Balkin’s comprehensive book. ↩︎
12. See generally Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2258 (2022) (dismissing “attempts to justify abortion through appeals to a broader right to autonomy” because such “a high level of generality” in constitutional interpretation “could license fundamental rights to illicit drug use, prostitution, and the like”) (internal citation omitted); Laurence H. Tribe, American Constitutional Law 944 (1978) (“[I]t makes all the difference in the world what level of generality one employs to test the pedigree of an asserted liberty claim.”); Mark V. Tushnet, Anti-Formalism in Recent Constitutional Theory, 83 Mich. L. Rev. 1502, 1514-16 (1985) (analyzing competing theories on the suitable “level of generality” in constitutional interpretation); Paul Brest, Who Decides?, 58 S. Cal. L. Rev. 661, 662 (1985) (“The distinction between originalism and non-originalism makes sense only as a reference to the different attitudes that an interpreter may hold—mainly attitudes about the level of generality on which to understand the language and purposes of provisions.”) (emphasis omitted). ↩︎
13. This short contribution cannot do justice to all the nuances of the vast and multifaceted scholarship on originalism. For instance, it does not address the distinction or overlap between “original intent” and “original public meaning” in originalist theories. See, e.g., Randy E. Barnett, Underlying Principles, 24 Const. Comment. 405, 410 (2007) (agreeing with Balkin that “evidence of the intentions of the Framers and ratifiers is often highly relevant to determining the public meaning of the words they decided to enact”); Jamal Greene, The Case for Original Intent, 80 Geo. Wash. L. Rev. 1683, 1705 (2012) (“Someone who believes that the constitutional text is specified by its original public meaning is not disabled from arguing that original intentions are relevant to the separate question of the weight to give the text in adjudicating cases.”). ↩︎
14. See generally Lawrence B. Solum, We Are All Originalists Now, in Constitutional Originalism: A Debate 1 (Lawrence B. Solum & Robert W. Bennett eds., 2011); Cass R. Sunstein, Originalism for Liberals, New Republic (Sept. 28, 1998), https://newrepublic.com/‌article/64084/originalism-liberals [https://perma.cc/RKT2-RZT2]; Monica Schreiber, Constitution Day 2024: A Lesson in History from an Originalist Liberal, Stan. L. Sch. (Oct. 14, 2024), https://law.stanford.edu/press/constitution-day-2024-a-lesson-in-history-from-an-originalist-liberal/ [https://perma.cc/86ZD-RVNG] (discussing a lecture by Akhil Reed Amar). ↩︎
15. Balkin, supra note 1, at 13. ↩︎
16. Id. at 8, 128, 200-01. ↩︎
17. Mugambi Jouet, Foucault, Prison, and Human Rights: A Dialectic of Theory and Criminal Justice Reform, 26 Theoretical Criminology 202, 203-04 (2022) (employing a dialectic framework to analyze the historical evolution of criminal punishment). ↩︎
18. Id. ↩︎
19. Balkin, supra note 1, at 8, 104. ↩︎
20. Id. at 200-01, 204. ↩︎
21. Id. at 9 (emphasis added). ↩︎
22. Id. at 9 (emphasis added). ↩︎
23. 410 U.S. 113 (1973). ↩︎
24. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2253 (2022) (“[A] right to abortion is not deeply rooted in the Nation’s history and traditions.”). ↩︎
25. See Harvard Law School, Rappaport Forum | Who Cares About Tradition? Constitutionalism After Dobbs and Bruen, YouTube (Nov. 30, 2022), https://www.youtube.com/‌watch?v=n_wKXWqsu9Y [https://perma.cc‌/C2PM-DJQN] (panel featuring William Baude, Jamal Greene, Daphna Renan, and Kathleen Sullivan); Cass R. Sunstein, Dobbs and the Travails of Due Process Traditionalism, in Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion 129, 133 (Lee C. Bollinger & Geoffrey R. Stone eds., 2024) (insisting that Dobbs was not an originalist decision); Stephen E. Sachs, Dobbs and the Originalists, 47 Harv. J.L. & Pub. Pol’y 539, 541 (2024) (concluding that Dobbs was an originalist decision); Mary Ziegler, The History of Neutrality: Dobbs and the Social-Movement Politics of History and Tradition, 133 Yale L.J.F. 161, 184-89 (2023) (exploring the historical evolution of the history-and-tradition test); Reva B. Siegel, The History of History and Tradition: The Roots of Dobbs’s Method (and Originalism) in the Defense of Segregation, 133 Yale L.J.F. 99, 127-46 (2024) (critiquing the originalist dimensions of Dobbs’s history-and-tradition test). See generally Felipe Jiménez, Tradition in Constitutional Adjudication, 36 Yale J.L. & Humanities (forthcoming 2025), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4641821 [https://perma.cc/35QB-CJDH] (theorizing the place of “tradition” in constitutionalism). ↩︎
26. Dobbs, 142 S. Ct. at 2326 (Breyer, Sotomayor, and Kagan, JJ., dissenting). ↩︎
27. Id. at 2333. ↩︎
28. Id. at 2325 (arguing that “the Framers defined rights in general terms, to permit future evolution in their scope and meaning”). ↩︎
29. Id. at 2267. Although Dobbs marked a radical shift in constitutional rights, it involved competing claims about tradition that had long been part of the U.S. constitutional debate. Again, consider Rebecca Brown’s 1993 article:
    
    If tradition is relevant as evidence of the intent of the Framers, at the very least must it not be confined to tradition contemporaneous with the framing of the document and known to the Framers? Does evidence of pre-Constitutional tradition bear on the intent of the Framers . . . ? Is evidence of post-Constitutional tradition at all relevant to what the document originally meant? And, perhaps most complex of all, what era of traditions is relevant to consideration of individual rights as applied to the states through the Due Process Clause of the Fourteenth Amendment—traditions from 1789, from 1868 . . . ?
    
    Brown, supra note 11, at 191. ↩︎
30. Scholars have theorized authoritarian populism, demagogy, and illiberal democracy in distinct ways that lie beyond the scope of this paper. See generally Tom Ginsburg & Aziz Z. Huq, How to Save a Constitutional Democracy (2018); Jan-Werner Müller, What Is Populism? (2016); Eric A. Posner, The Demagogue’s Playbook: The Battle for American Democracy from the Founders to Trump (2020). ↩︎
31. My research defines the modern Western world as the United States, Canada, Australia, New Zealand, and European nations, except Russia and states aligned with Russia, such as Belarus. See generally Jouet, supra note 7, at 6. ↩︎
32. Id. at 22-23. This section draws upon Mugambi Jouet, Theorizing American Exceptionalism: An Interdisciplinary Historiography and Intellectual History, J. Interdisc. Hist. Ideas (forthcoming 2025) (on file with author). ↩︎
33. Aaron Karp, Small Arms Survey, Estimating Global Civilian-Held Firearms Numbers 4 (2d ed. 2018). ↩︎
34. Amnesty Int’l, Abolitionist and Retentionist Countries as of December 2022 2 (2023), https://www.amnesty.org/en/documents/act50/6591/2023/en/ [https://perma.cc/‌GBN7-KDG4]. ↩︎
35. See Jouet, supra note 7, at 22. ↩︎
36. Balkin, supra note 1, at 9, 36, 58, 74-76. ↩︎
37. Id. ↩︎
38. Id. at 78-79. ↩︎
39. Id. at 78. ↩︎
40. Id. at 59. ↩︎
41. Id. passim. ↩︎
42. See generally Michael Kammen, In the Past Lane: Historical Perspectives on American Culture 174, 178-83 (1997); Daniel T. Rodgers, Exceptionalism, in Imagined Histories: American Historians Interpret the Past 21, 23-36 (Anthony Molho & Gordon S. Wood eds., 1998); Joyce E. Chaplin, Expansion and Exceptionalism in Early American History, 89 J. Am. Hist. 1431, 1432-33 (2003). ↩︎
43. See generally Patricia L. Dunmire, The Great Nation of Futurity: The Discourse and Temporality of American National Identity 38-41 (2023).
    [1] See Rodgers, supra note 42, at 25. ↩︎
44. See Rodgers, supra note 42, at 25. ↩︎
45. See generally supra note 42 and accompanying text. ↩︎
46. See generally Atlantic History: A Critical Appraisal (Jack P. Greene & Philip D. Morgan eds., 2008); Rethinking American History in a Global Age (Thomas Bender ed., 2002); Robert McGreevey, Adam Hodges, Amy Kittelstrom & Noam Maggor, Atlantic Crossings Revisited, 22 J. Gilded Age & Progressive Era 512, 521-23 (2023); Chaplin, supra note 42, at 1432-33; Francis D. Cogliano, Revisiting the American Revolution, 8 Hist. Compass 951, 955-58 (2010). ↩︎
47. Jack P. Greene, The Intellectual Construction of America: Exceptionalism and Identity From 1492 to 1800 4 (1993). ↩︎
48. See, e.g., Amalia Kessler, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800–1877 (2017); Carol S. Steiker & Jordan M. Steiker, Global Abolition of Capital Punishment, in Comparative Capital Punishment 388, 399-404 (Carol S. Steiker & Jordan M. Steiker eds., 2019); Stephen Gardbaum, The Myth and the Reality of American Constitutional Exceptionalism, 107 Mich. L. Rev. 391 (2008); Mila Versteeg & Emily Zackin, American Constitutional Exceptionalism Revisited, 81 U. Chi. L. Rev. 1641 (2014). ↩︎
49. See, e.g., Seymour Martin Lipset, American Exceptionalism: A Double-Edged Sword (1997); Is America Different? A New Look at American Exceptionalism (Byron E. Shafer ed., 1991). ↩︎
50. See, e.g., Jerome Karabel & Daniel Laurison, An Exceptional Nation? American Political Values in Comparative Perspective (Inst. Rsch. Lab. & Emp. Working Paper No. 136-12, 2012), https://irle.berkeley.edu/wp-content/uploads/2012/12/An-Exceptional-Nation.pdf [https://perma.cc/WC75-57PL]. ↩︎
51. [1] See, e.g., Robert C. Allen, American Exceptionalism as a Problem in Global History, 74 J. Econ. Hist. 309 (2014); Joseph P. Ferrie, The End of American Exceptionalism? Mobility in the United States Since 1850, 19 J. Econ. Perspectives 199 (2005). ↩︎
52. See, e.g., American Exceptionalism in Crime and Punishment (Kevin R. Reitz ed., 2017); Amanda L. Robinson & Christopher D. Maxwell, Typifying American Exceptionalism: Homicide in the USA, in The Handbook of Homicide 368 (Fiona Brookman, Edward R. Maguire & Mike Maguire eds., 2017). ↩︎
53. See, e.g., Taesuh Cha, American Exceptionalism at the Crossroads: Three Responses, 13 Pol. Stud. Rev. 351 (2015). ↩︎
54. See also Jouet, supra note 7, at 22-23 (discussing “exceptionalism” as being an “exception”). ↩︎
55. Balkin, supra note 1, at 86-87. ↩︎
56. Id. at 87. ↩︎
57. Id. ↩︎
58. Jouet, supra note 7, at 23-27. ↩︎
59. See id. at 22-23; Daniel T. Rodgers, As a City on a Hill: The Story of America’s Most Famous Lay Sermon 251-57 (2018); James W. Ceaser, The Origins and Character of American Exceptionalism, 1 Am. Pol. Thought 3, 7-9 (2012); Peter S. Onuf, American Exceptionalism and National Identity, 1 Am. Pol. Thought 77, 78 (2012). ↩︎
60. Jouet, supra note 7, at 23-27. ↩︎
61. Balkin, supra note 1, at 174. ↩︎
62. See generally Mugambi Jouet, Guns, Identity, and Nationhood, 5 Palgrave Commc’n 1 (2019). ↩︎
63. See N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022) (focusing on whether “a firearm regulation is consistent with this Nation’s historical tradition”); McDonald v. City of Chicago, 561 U.S. 742, 767 (2010) (finding that the right to bear arms is “deeply rooted in this Nation’s history and tradition”); District of Columbia v. Heller, 554 U.S. 570, 595 (2008) (holding that “on the basis of both text and history, . . . the Second Amendment conferred an individual right to keep and bear arms”); see also Jacob D. Charles, The Dead Hand of A Silent Past: Bruen, Gun Rights, and the Shackles of History, 73 Duke L.J. 67 (2023). ↩︎
64. See Karp, supra note 33, at 4; Robinson & Maxwell, supra note 52, at 368-83; John Donohue, How US Gun Control Compares to the Rest of the World, The Conversation (June 24, 2015, 6:10 AM), https://theconversation.com/how-us-gun-control-compares-to-the-rest-of-the-world-43590 [https://perma.cc/VJ5R-8HQ5]. ↩︎
65. See Balkin, supra note 1, at 9, 74-76. ↩︎
66. See generally François Furet, Penser la Révolution française 16-17 (1978) (discussing the century of upheavals following the French Revolution); Georges Vedel, La place de la Déclaration de 1789 dans le ‘bloc de constitutionnalité’, in La Déclaration des droits de l’homme et du citoyen et la jurisprudence 35, 35-36 (1989) (analyzing the Revolution’s legacy in modern French constitutionalism). ↩︎
67. Louis Favoreu, Patrick Gaïa, Richard Ghevontian, Jean-Louis Mestre, Otto Pfersmann, André Roux & Guy Scoffoni, Droit constitutionnel 134-37, 357-58, 911, 929 (Dalloz 20th ed. 2018). ↩︎
68. Ginsburg & Huq, supra note 30, at 205-06. ↩︎
69. Balkin, supra note 1, at 81. ↩︎
70. Id. ↩︎
71. Id. ↩︎
72. Id. ↩︎
73. Id. ↩︎
74. See, e.g., Gregory Ablavsky, Why We Should Stop Saying “The Founders”, 173 U. Pa. L. Rev. (forthcoming 2025) (manuscript at 4-12) (questioning the concept of “Founders” or “Founding Fathers” and identifying it as a form of “filiopietism,” namely “ancestor worship”). ↩︎
75. Deseret News, Faith in America Survey 10 (2022). ↩︎
76. Gregory A. Smith, Michael Rotolo & Patricia Tevington, Pew Rsch Ctr., 45% of Americans Say U.S. Should be a Christian Nation 5 (2022). ↩︎
77. Balkin, supra note 1, at 5. ↩︎
78. Id. at 10. ↩︎
79. Id. at 12-13. ↩︎
80. Id. at 10. ↩︎
81. Id. at 69. ↩︎
82. See George M. Marsden, Understanding Fundamentalism and‌ Evangelicalism 3-4, 32-39, 135-52 (1991); Mark A. Noll, A History of Christianity in the United States and Canada 381-86, 430 (1992); see also Jouet, supra note 7, at 86-88; Jouet, Abortion and American Exceptionalism, supra note 10 (manuscript at 29-32). ↩︎
83. Marsden, supra note 82, at 3. ↩︎
84. See id. at 32-34, 56-57. ↩︎
85. Id. at 41. ↩︎
86. Id. at 34. ↩︎
87. Noah Feldman, Divided by God: America’s Church-State Problem—and What We Should Do about It 185 (2005); Stephen Prothero, Religious Literacy: What Every American Needs to Know—and Doesn’t 144 (2007). ↩︎
88. Jouet, supra note 7, 86-88, 113-14, 118-119. ↩︎
89. Id. ch. 3. ↩︎
90. Id. at 89-90. ↩︎
91. Gregory A. Smith, Patricia Tevington, Justin Nortey, Michael Rotolo, Asta Kallo & Becka A. Alper, Pew Rsch. Ctr., Religious ‘Nones’ in America: Who They Are and What They Believe 6 (2024). Overall, “70% of ‘nones’ say they believe in God or another higher power, and 63% say they believe in spiritual forces beyond the natural world.” Id. at 43. ↩︎
92. Jouet, supra note 7, at 8, 80-81. ↩︎
93. See supra note 8 and accompanying text. ↩︎
94. Davison Hunter, supra note 8, at 44. ↩︎
95. Id. ↩︎
96. Id. at 44-45. ↩︎
97. Balkin, supra note 1, at 88. ↩︎
98. Id. at 89 (citing Franklin D. Roosevelt, President of the United States, Address on Constitution Day, Washington, D.C. (Sept. 17, 1937), in The American Presidency Project, http://www.presidency.ucsb.edu/ws/index.php?pid=15459 [https://perma.cc/4UJL-PQLW]). ↩︎
99. Balkin, supra note 1, at 78, 80, 86. ↩︎
100. Robert N. Bellah, Civil Religion in America, 96 Dædalus 1, 1 (1967). Bellah traced the concept of civil religion to Jean-Jacques Rousseau but noted that similar ideas had emerged in eighteenth-century America. See id. at 5; see also John D. Wilsey, American Exceptionalism and Civil Religion: Reassessing the History of an Idea 17-25 (2015) (discussing Bellah’s theory and the evolution of civil religion). ↩︎
101. [1] See, e.g., Ronald Reagan, President of the United States, Farewell Address to the Nation (Jan. 11, 1989) (transcript available at Ronald Reagan Presidential Library & Museum, https://www.reaganlibrary.gov/archives/speech/farewell-address-nation [https://perma.cc/BS88-V4Z5]) (describing America as a “shining city upon a hill”). ↩︎
102. See, e.g., Barack Obama, President of the United States, Inaugural Address (Jan. 21, 2009) (transcript available at Obama White House, https://obamawhitehouse.archives.gov/blog/‌‌2009/‌01/‌21/president-Barack-obamas-inaugural-address [https://perma.cc/W88J-UHXU]) (referring to “God” five times). ↩︎
103. See Bellah, supra note 100, at 9, 18, 19. ↩︎
104. Id. at 9; Balkin, supra note 1, at 80. ↩︎
105. Balkin, supra note 1, at 8, 132. ↩︎
106. Id. at 128. ↩︎
107. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2326 (2022) (Breyer, Sotomayor, and Kagan, JJ., dissenting) (quoting Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting)). Reva Siegel has especially described how the Dobbs Court erased women in its framing of the American people and their history. See Reva B. Siegel, The Politics of Constitutional Memory, 20 Geo. J.L. & Pub. Pol’y 19, 19, 27 (2022); Reva B. Siegel, Memory Games: Dobbs’s Originalism as Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance, 101 Tex. L. Rev. 1127, 1138, 1184 (2023). ↩︎
108. Balkin, supra note 1, at 181. ↩︎
109. Id. at 184. ↩︎
110. Id. at 133. ↩︎
111. See William Hogeland, From Ron Chernow’s Alexander Hamilton to Hamilton: An American Musical, in Historians on Hamilton: How a Blockbuster Musical Is Restaging America’s Past 17, 24 (Renee C. Romano & Claire Bond Potter eds., 2018). See generally Ron Chernow, Alexander Hamilton (2004). ↩︎
112. See Hogeland, supra note 111, at 17; Hamilton and the Law: Reading Today’s Most Contentious Legal Issues Through the Hit Musical xii-xiii (Lisa A. Tucker ed., 2020). ↩︎
113. Kate Keller, The Issue on the Table: Is “Hamilton” Good for History?, Smithsonian Mag. (May 30, 2018), https://www.smithsonianmag.com/history/issue-table-hamilton-good-history-180969192/ [https://perma.cc/CS5B-Q5T7]. ↩︎
114. See Hogeland, supra note 111, at 20-21. ↩︎
115. See Kaylyn Sawyer, Belonging to the Ages: The Enduring Relevance of Aaron Copland’s Lincoln Portrait, 40 J. Abraham Lincoln Ass’n 25, 36 (2019); A Lincoln Portrait, N.Y. Philharmonic, https://archives.nyphil.org/lincolnportrait/ [https://perma.cc/Y7JH-5DBQ] (last visited Apr. 26, 2025). ↩︎
116. Frank Villella, 125 Moments: 068 Barack Obama, Chi. Symphony Orchestra (Apr. 25, 2016), https://cso.org/experience/article/8622/125-moments-068-barack-obama [https://perma.cc/‌GJM4-5CPJ] (Chicago Symphony Orchestra concert in 2005). ↩︎
117. Janelle Gelfand, Maya Angelou Transports in CSO’s New ‘Hallowed Ground’, Cincinnati Enquirer (Sept. 10, 2024, 10:19 AM), https://www.cincinnati.com/story/entertainment/‌arts/‌2014/09/10/maya-angelou-transports-csos-new-hallowed-ground/15382113/ [https://perma.cc/K4L6-SRJU] (Cincinnati Symphony Orchestra in 2013). ↩︎
118. Melinda Bargreen & Tom Moon, Recordings, Seattle Times, Jan. 28, 1993, at E4 (Seattle Symphony recording in 1993). ↩︎
119. Copland: Lincoln Portrait—Phylicia Rashad and the National Symphony Orchestra, Kennedy Ctr. (Jan. 22, 2017), https://www.kennedy-center.org/video/digital-stage/classical-music/2018/‌copland-lincoln-portrait—phylicia-rashad-and-the-national-symphony-orchestra/ [https://perma.cc/83GW-PMLM] (National Symphony Orchestra concert in 2017). ↩︎
120. Short Takes: ‘Dr. J.’ Narrates Copland Piece, L.A. Times, Jan. 15, 1991, at 10 (Philadelphia Orchestra concert in 1991). ↩︎
121. See generally Richard Wightman Fox, Lincoln’s Body: A Cultural History 20-23 (2015). While Lincoln has been largely celebrated throughout American history, including among the Black community, successive generations have faced debates about his legacy and attitude toward racial equality. See id. at 74-75, 79-82, 95, 185-86, 224-26, 273-75. ↩︎
122. See W. Dale Mason, The Indian Policy of Abraham Lincoln, 20 Indigenous Pol’y J. 1, 1 (2009) (“Second only to winning the Civil War and establishing a just post war reconstruction, Lincoln’s highest policy priority was settling the west.”). ↩︎
123. Balkin, supra note 1, at 176. ↩︎
124. See, e.g., Jenny Gross & Azi Paybarah, San Francisco Schools Will Keep Jefferson, Lincoln and Washington Names, N.Y. Times (Apr. 7, 2021), https://www.nytimes.com/2021/04/07/us/san-francisco-schools-names.html [https://perma.cc/FE7W-STRB]. ↩︎
125. See, e.g., Greg Lukianoff & Jonathan Haidt, The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting up a Generation for Failure 93 (2018) (“[A]ctivists tried to shut down the freshman humanities course [at Reed College] because it focused on the thinkers of ancient Greece and the eastern Mediterranean world . . . .”). ↩︎
126. Balkin, supra note 1, at 8, 154 (emphasis in original). ↩︎
127. Id. at 154, 156, 159. ↩︎
128. Martha Minow, The Controversial Status of International and Comparative Law in the United States, 52 Harv. Int’l L.J. Online 1, 5-7 (2010), https://dash.harvard.edu/bitstream/handle/1/‌10511098/Controversial%20Status%20HILJ.pdf?sequence=1&isAllowed=y [https://perma.cc/9H9J-88FF]. ↩︎
129. Id. at 2-5, 7-8. ↩︎
130. See id. at 4-5. ↩︎
131. See supra note 75 and accompanying text. ↩︎
132. See Balkin, supra note 1, at 52-53, 202-206; Deborah Dinner, Originalism and the Misogynist Distortion of History in Dobbs, L. & Hist. Rev. (June 14 2022), https://lawandhistoryreview.org/‌article/‌dr-deborah-dinner-originalism-and-the-misogynist-distortion-of-history-in-dobbs%EF%BF‌%BC/ [https://perma.cc‌/7NGX-6E57]; Sara McDougall, Mireille Pardon & Karl Shoemaker, “Abortion Was a Crime”? Three Medievalists Respond to “English Cases Dating All the Way Back to the 13th Century Corroborate the Treatises’ Statements That Abortion Was a Crime.”, L. & Hist. Rev. (June 14, 2022), https://lawandhistoryreview.org/article/abortion-was-a-crime-three-medievalists-respond-to-english-cases-dating-all-the-way-back-to-the-13th-century-corroborate-the-treatises-statements-that-abortio/ [https://perma.cc‌/V5LL-Q2ST]; History, the Supreme Court, and Dobbs v. Jackson: Joint Statement from the AHA and the OAH, Am. Hist. Ass’n (July 2, 2022), https://‌www.historians.org/news/history-the-supreme-court-and-dobbs-v-jackson-joint-statement-from-the-aha-and-the-oah/ [https://perma.cc‌/EX9D-QH86]; see also Aaron Tang, After Dobbs: History, Tradition, and the Uncertain Future of a Nationwide Abortion Ban, 75 Stan. L. Rev. 1091, 1128-50 (2023) (disputing Dobbs’s tally of the states that banned abortion in 1868). ↩︎
133. Balkin, supra note 1, at 176. ↩︎
134. See generally id. at 13, 63, 173, 176. ↩︎
135. Id. at 186. ↩︎
136. Id. at 72. ↩︎
137. See id. at 145, 232, 252. ↩︎
138. See, e.g., id. at 146. ↩︎
139. Id. ch. 14-16. ↩︎
140. Id. at 42-43. See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242 (2022); Obergefell v. Hodges, 576 U.S. 644, 672-73 (2015). ↩︎
141. Balkin, supra note 1, at 163. ↩︎
142. Id. at 62. ↩︎
143. Id. at 97; see also supra note 21 and accompanying text. ↩︎
144. André Burguière, The Annales School: An Intellectual History 22 (Jane Marie Todd trans., 2009). ↩︎
145. George Orwell, 1984: 75th Anniversary 248 (Signet 2023) (1949). ↩︎
146. Id. ↩︎
147. See generally Martha C. Nussbaum, Not for Profit: Why Democracy Needs the Humanities (2016). ↩︎
148. Richard Hofstadter, Anti-Intellectualism in American Life 7 (Vintage 1994) (1963). ↩︎
149. See generally Susan Jacoby, The Age of American Unreason in a Culture of Lies (2d ed. 2018) (chronicling worsening anti-intellectualism in the twenty-first century); Jouet, supra note 7, ch. 2 (discussing the history of anti-intellectualism in the United States and its modern manifestations). ↩︎
150. Hofstadter, supra note 148, at 30. ↩︎
151. Kurzweil, supra note 5, at 290. ↩︎
152. Id. ↩︎
153. Id. ↩︎