Constructing a Liberal/Progressive “Constitution in Exile”: An Appreciation of Jack Balkin’s Memory and Authority

Balkin’s book makes clear why many liberal/progressive criticisms of conservative originalists—that they get the history wrong or cherry-pick it, that they only selectively insist upon originalism and otherwise ignore it, and the like—deliver at best glancing blows (as far as the conservative originalists are concerned). For one thing, he shows that the construction of memory entails the construction of forgetting (or erasure),7 which is essential to originalist projects that whitewash our historical injustices and repudiate the progressive aspirations embodied in our history. Hence, when conservative originalists erase unjust aspects of our history, and liberals and progressives criticize them for not reckoning with this history, they are unmoved by the criticisms.8 For another, he demonstrates that conservative originalists—like everyone else who makes originalist arguments—are “cafeteria originalists.”9 Thus, conservative originalists selectively use originalism and in fact avail themselves of the full menu of forms of constitutional argument in justifying decisions, just as their critics do. The best rebuttal would offer more than just the common criticisms of conservative originalism. More importantly and constructively, it also would provide liberal/progressive counternarratives that use history, in the ways Balkin’s book proposes and illustrates, in making normative arguments about the best interpretations of our constitutional commitments. Indeed, Balkin’s book can serve as a manifesto and prescription for a form of liberal/progressive popular constitutionalism: demonstrating how best to use history in making arguments to build and maintain a liberal/progressive “Constitution in exile” over the next generation. Here is a roadmap of this essay. First, I outline a typology of forms of popular constitutionalism, suggesting where Balkin’s Memory and Authority fits into this discourse. Second, I give five compelling reasons to appreciate and build upon Balkin’s project. Finally, I sketch briefly how Balkin’s book might inform Linda C. McClain’s and my current book project, “What Shall Be Orthodox” in Polarized Times. His book illuminates how our book might most effectively counter conservatives’ overextension of West Virginia State Board of Education v. Barnette’s11 famous warning—that government may not prescribe “what shall be orthodox”—in their challenges to liberal/progressive programs that seek to secure the status of equal citizenship for all.