Legal History

This week I am reading to prepare for the upcoming semester. I am teaching one of my favorite and most challenging classes “History on Trial.” I am updating my scholarship, therefore, with three new and powerful books. Jack Balkin’s Memory and Authority is a sweeping rethink of how judges use history and shape memory. Instead of simply thinking about how jurists deploy history, Balkin is invested in how they create particular kinds of historical interpretations and therefore treats their work as a kind of historical memory. Jonathan Gienapp’s argument is in some ways narrower, but his revisionism is far more expansive. In Against Constitutional Originalism he makes the seemingly uncontroversial point that context matters, and gives words their meaning. Yet if that point is not controversial, it is also not very well respected in the current moment, Gienapp argues. He shows how earlier constitutional assumptions gave the text very different meaning. I will have a lot more to say about those books over time, given their breadth and the stakes of their arguments. But for now I have one big conclusion which is how indespensible Alison LaCroix’s The Interbellum Constitution is. It will change how I teach in ways big and small, by revealing the period of constitutional innovation between the two eras we usually treat as most innovative (the 1770s and the 1860s). Treating the period in between as an era of constitutional change brings a whole swath of history to life, and will reshape several of my lectures in the semester to come.