The Uses and Misuses of History: The Roberts Court and Its Constitutional Revolution

The Roberts Court has embarked on a revolution in constitutional doctrine using history to legitimate its constitutional revolution and establish its authority. Sometimes the Court's conservative majority employs originalism, sometimes it invokes tradition, and sometimes it ignores originalism and tradition altogether. As its revolution proceeds, the use of history to assert authority has taken on a new urgency: Critics charge that many of the Court's decisions are undermining democracy and civil rights, while its supporters argue that the Court is finally restoring the Framers' Constitution. This program will discuss how lawyers, scholars, and judges use and misuse history to legitimate their authority. Our primary speakers will be Jack M. Balkin of Yale Law School (author of the recent book, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024), and Jonathan Gienapp of Stanford History Department and Law School (author of the recent book, Against Constitutional Originalism: A Historical Critique (Yale University Press, 2024). BU Law Professors James E. Fleming and Jed H. Shugerman, both of whom have written extensively about originalism and the uses of history in constitutional interpretation, will comment on Professor Balkin’s and Professor’s Gienapp’s arguments.