Includes bibliographical references (pages 271-359) and index.
Contents:
Frontmatter -- Contents -- Part I Making Historical Arguments -- 1. Arguing with History -- 2. History and the Forms of Constitutional Argument -- 3. How Modality Shapes History -- 4. Arguments from National Ethos, Political Tradition, and Honored Authority -- Part II Originalism and Living Constitutionalism -- 5. Twins Separated at Birth -- 6. Why Are Americans Originalist? -- Part III Interpretation and Construction -- 7. Living Originalism -- 8. Why It's Better to Be Thin -- 9. Making Originalist Arguments -- 10. Originalist Arguments for Everyone -- Part IV Constitutional Memories -- 11. The Power of Memory and Erasure -- 12. Constitutional Memory and Constitutional Interpretation -- 13. Expanding Constitutional Memory -- Part V Lawyers and Historians -- 14. Historians Meet the Modalities -- 15. The Special Skill and Knowledge of Lawyers -- 16. Lawyers' Need for a Usable Past -- Acknowledgments -- Notes -- Index
Summary:
"From one of the nation's preeminent constitutional scholars, a sweeping rethinking of the uses of history in constitutional interpretation. Fights over history are at the heart of most important constitutional disputes in America. The Supreme Court{u2019}s current embrace of originalism is only the most recent example of how lawyers and judges try to use history to establish authority for their positions. Jack M. Balkin argues that fights over constitutional interpretation are often fights over collective memory. Lawyers and judges construct and erase memory to lend authority to their present-day views; they make the past speak their values so they can then claim to follow it. The seemingly opposed camps of originalism and living constitutionalism are actually mirror images of a single phenomenon: how lawyers use history to adapt an ancient constitution to a constantly changing world. Balkin shows how lawyers and judges channel history through standard forms of legal argument that shape how they use history and even what they see in history. He explains how lawyers and judges invoke history selectively to construct authority for their claims and undermine the authority of opposing views. And he elucidates the perpetual quarrel between historians and lawyers, showing how the two can best join issue in legal disputes. This book is a sweeping rethinking of the uses of history in constitutional interpretation." Yale University Press.
Series:
Yale Law Library series in legal history and reference
This resource is supported by the Institute of Museum and Library Services under the provisions of the Library Services and Technology Act as administered by State Library of Iowa.