In Praise of Ignoring Facts: A Review of Jack Balkin’s “Memory and Authority”
Recently I posted a new paper on SSRN, “In Praise of Ignoring Facts.” It’s a critical review of Jack Balkin’s book Memory and Authority: The Uses of History in Constitutional Interpretation, part of a symposium on the book organized by the William & Mary Bill of Rights Journal. Here’s the abstract:
Lawyers and judges invoke history for lots of reasons, some of them purely rhetorical or instrumental. That’s why we academics have to hold their feet to the fire, sifting through their arguments for the implicit theories that treat some historical facts as more significant than others. Yet much modern con-law literature takes precisely the opposite tack, criticizing this effort at theoretical abstraction and parsimony as a form of intellectual blinders.
Jack Balkin’s Memory and Authority offers an admirable account of how American lawyers make use of history. But treating every use of history, including every instrumental use, as equally authoritative for the law is fatal to any theoretical project. That includes Balkin’s own “thin” theory of constitutional law, which stretches itself past the breaking point to accommodate the changing winds of social movements or modern demands for legitimacy. Instead, constitutional theory needs more theory: less court- or lawyer-watching and more effort to distinguish the content of the law from everything else that shapes what courts and lawyers do.
And from the introduction:
Contracts students may remember the old chestnut of Cotnam v. Wisdom, in which a Mr. A. M. Harrison “was thrown from a street car” and, while unconscious, treated by doctors who couldn’t revive him. The Arkansas courts saw the case as one of quasi-contract, asking whether the doctors were due a reasonable fee, and also whether their award should be reduced for their lack of success or increased given the estate’s ability to pay. When my wife and I were in law school, though, a classmate of hers raised a different question: whether Harrison, rather than having been “thrown” from the car, might actually have committed suicide. Rather well-insured for a bachelor, might he have leapt from the car on purpose, hoping his nieces and nephews might benefit by his death?
To normal people actually concerned with these actual events, this question might seem far more interesting. Even lawyers (a distinct category) might in their spare time enjoy looking beyond the casebooks to find out what really happened. But when they’re “on the job,” so to speak, a question like this might seem the worst sort of irrelevance—illuminating nothing of importance, neither the measure of damages owed nor the general principles of qu
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