One of the most valuable aspects of Jack Balkin’s new book, in my view, is the seriousness and attention it gives to the concept of constitutional memory. Alongside recent work by Aziz Rana and Reva Siegel, the book joins a growing field of memory studies within constitutional law—an echo of the early 2000s “memory boom” within the American historical profession interrogating fights over the remembrance of the past, which itself drew from work by Pierre Bourdieu and other sociologists.
This Essay takes up Balkin’s invitation to explore constitutional memory by focusing on one particular aspect—the language that we use to describe the past—and one particular term: “the Founders.” Specifically, I argue that scholars and academics should stop using this term.
That I don’t need to specify the term demonstrates how canonical “the Founders” have become. Unless context suggests otherwise, “the Founders” (usually capital “F”) connotes the collection of bewigged men who, in the late eighteenth century, declared the United States to be an independent nation and then drafted and ratified the Constitution. The term carries considerable weight not only within American popular culture, but also within our formal legal culture, routinely appearing in court decisions, briefs, and law review articles. “The Founders,” in other words, is deeply rooted in our national psyche.
In this sense, employing the term “the Founders”—as opposed to, say, just quoting The Federalist—is one of the arguments from “national ethos” that Balkin shows is a powerful modality in constitutional law. And yet, it is precisely Balkin’s attentiveness to constitutional memory that underscores why this choice of words matters. History and law are, in their own ways, both fields that care deeply about language, as anyone who has sat through a history seminar debating the meaning of “capitalism” or a 1L contracts class unpacking the definition of “chicken” can attest. Words shape the way we understand the past and present. And so, if we want to think about constitutional memory clearly—to interrogate why some things are erased while others become canonical; why some views matter while others don’t; why some people are central to constitutional memory while others are sidelined—the terms we routinely and often unthinkingly use are a good place to start.
What, then, is wrong with “the Founders”? In this essay, I’ll catalogue a few of what I think are some of the term’s limitations. It is vague because it is not clear who is in and who is out. It stresses uniformity over disagreement. It embraces filiopietism and ancestor worship. It transforms the study of institutions and ideas into biography. And it is exclusionary—not just in the sense of the widespread critique that the conventional Founders were elite white men, but also, more broadly, in the sense that the term conscripts its subjects into the project of building the United States. I’ll then turn to the question, if we don’t use “the Founders,” what should we use instead? In a word: nothing. That is, there are lots of terms that might capture with more specificity what we mean in any given instance when we say, “the Founders.” But we do not need a new collective noun that describes this amorphous group of late-eighteenth-century politicians. We manage to speak coherently about lots of other moments of significant historical and constitutional change—including, most notably, the “Second Founding,” the Reconstruction era—without a term analogous to “the Founders.”