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 quasi-contract. Among weirdos like us, who cares whether Harry James Tompkins lied about being struck by something protruding from an Erie Railroad car, if we can instead argue about when federal judges should defer to state court opinions? Who cares about the unfairness to a defendant that the light was actually green, once a properly instructed jury, on sufficient evidence, has returned a verdict that it was red?
This ordinary-person's sense of priorities is part of what we brutally beat out of first-year law students in training them to "think like a lawyer": not (or not just) for the reproduction of hierarchy, but because the particular corner of human culture known as law cares more about some facts than others. "Quasi-contract," "corporation," "collateral estoppel," and all our other rules and doctrines are designed to produce a simplified, machine-readable picture of the world, a picture that can sometimes treat like cases alike only because it little resembles the tangled way the world really is. And a fundamental part of lawyering is knowing which of these facts matter when—practically or legally, in the conference room or the courtroom, before the jury or the bench, at trial or on appeal.
So one might expect lawyers and legal theorists to appreciate efforts at theoretical clarity, attaching significance to certain facts over others and defending these choices on straightforward theoretical grounds. Yet much modern con-law literature takes precisely the opposite tack—treating the very act of throwing away information as suspicious and criticizing the abstraction necessary for clear thought as a form of intellectual blinders.
To Jack Balkin, to whose book Memory and Authority this Symposium is dedicated, "[c]onservative originalism is a practice of erasure," so stingy in its use of historical facts that it "finds large portions of the American experience (and the American population) irrelevant" to the Constitution's proper understanding. Its focus on Founding-era law treats "all other uses of history, all other periods of history, and, indeed, all of the other places on Earth where history occurred" as "of limited importance." Its "bounded conception of constitutional memory" ignores features of the past "not relevant to its theoretical claims," "stiff-arming historians" and "setting boundaries on how other lawyers should use history." Indeed, "conservative" originalism risks not just inaccuracy but injustice, entrenching the past exclusion of women, ethnic minorities, and other "groups shut out of formal constitution-making."
None of this might matter if originalism could defend its choice of emphasis and pay its own way. But rather than "debat[e] the pros and cons of originalism" at level of theory, Balkin suggests, we'll learn more if we "focus instead on how people actually make constitutional claims." Memory and Authority offers an account of "how people use history when they interpret the Constitution," employing "modalities" or "forms of argument" to gain "authority" for their own claims and to "undermine[]" those of others. That's the right focus, the book contends, because "[t]he structure of legal rhetoric reflects the structure of legal reasoning."
This last argument is a step too far, for not all legal rhetoric is created equal. As a study of rhetoric, Memory and Authority establishes that lawyers, judges, and others in our legal system use history for a variety of rhetorical purposes. But while it accepts that every form of argument is backed by an "implicit theory" of which facts matter, the book refuses to judge these forms of legal rhetoric by how plausible their implicit theories might be—and, what's more, criticizes others for doing so. Instead, on its telling, any attempt to corral the rhetorical use of history is necessarily doomed, because lawyers "interested in endless disputation" will always "want to persuade audiences and win arguments with their opponents," searching "for ever new historical sources and approaches" whether their underlying theories are sensible or not.
In other words, Memory and Authority sees American lawyers as using history the way Tonya Harding might use a crowbar, to kneecap their opponents whenever they think they can get away with it. But just as the attack on Nancy Kerrigan served only as indirect and limited evidence of the rules of United States Figure Skating, lawyers' rhetorical use of history serves only as indirect and limited evidence of the content of American law.
Treating every use of legal rhetoric as equally probative of American law is fatal to the theoretical project—including to Balkin's own "thin" theory of constitutional law, which stretches itself past the breaking point in the hopes of accommodating the changing winds of social movements. Rather than take advocates' rhetorical moves for granted, we scholars have the indulgence and time to look for the implicit theories underlying these moves, to air those theories explicitly, to identify what might make them true or false, and to assess how plausible they are on those grounds. Constitutional theories need microfoundations: a theory of what American constitutional law provides ought to be responsible to a theory of what American law provides, which in turn ought to be responsible to a theory of legal content more generally. Or, to put it in slogan form, constitutional theory needs more theory—less court- or lawyer-watching and more concern about distinguishing the content of the law from the many other law-adjacent phenomena in a complex society like ours.
This approach sometimes goes under the bad name of "the methodological autonomy of law"—as if law were made in a vacuum, without any involvement from politics, economics, or real-life human beings. But methodological autonomy is part of how we learn things about a complex and interrelated world. Our social world is chock-full of different and overlapping systems of norms, principles, rules, and standards; understanding them often means sorting through all of them and attributing different practices, criticisms, or evaluations to different systems. We might need to distinguish, say, norms of etiquette from norms of fashion, even as a guest's wearing a long white dress to a wedding offends against both. Or we might need to separate legal norms (like the rule against perpetuities) from the many nonlegal customs of lawyers, such as wearing morning coats, opening arguments with "May it please the Court," or adopting certain styles of historical rhetoric. To refuse to draw these distinctions simply because they all affect us in practice—because we human beings have to act under all of them at once—makes our analysis less sophisticated rather than more so; it flattens, rather than enhances, our understanding of the social world.
As they say, read the whole thing!
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