The Supreme Court’s recent turn to history and tradition as guides for understanding the public meaning of text has reignited longstanding debates about the uses of history in law. In Memory and Authority, the longtime advocate of “living originalism,” Jack Balkin, argues that the Court’s use of history is self-serving, and amounts to the “mirror image” of living constitutionalism. Three Law & Liberty contributors—law professor Mark Movsesian, political theorist David Schaefer, and historian Aaron N. Coleman—assess the book, as well as the promise and limitations of “law-office history” fr ..read more

Jack Balkin’s new book, Memory and Authority, opens with an account of the “modalities” of historical argument that lawyers and judges may employ in interpreting the Constitution. These include arguments based on text, constitutional structure, and purpose, but also factors like “national ethos,” “political tradition,” and “honored authority.” It soon emerges that Balkin’s underlying goal in listing these approaches, as an exponent of a doctrine he calls “living originalism” (alternatively, “framework originalism”), is to undermine the claim that the Constitutional text, read as a reflection o ..read more

Jack M. Balkin’s Memory and Authority deserves praise for advocating that a natural relationship exists between history and constitutional interpretation. He is right to point out that both should rely upon one another more than they do; it is a shame that each group looks sideways at the other. Much of this suspicion emerged with the rise of professional history a century ago, with its disciplinary focus on context, causality, and change over time. Instead, what should be a beneficial kinship is fraught with recriminations—many of which Balkin documents—as each side frequently accused th ..read more

History and tradition are having a moment in American constitutional law. In recent landmark cases, the Supreme Court has looked to history and tradition as guides to construing the meaning of the Constitution. For example, in Kennedy v. Bremerton School District, the justices ruled that the Establishment Clause “must be interpreted by ‘reference to historical practices and understandings.’” Practices consistent with American tradition, like the non-coercive prayers a public school football coach offered in Kennedy, do not violate the Clause. Similarly, in the Dobbs case that held that the Con ..read more

Editor’s Note: Mitch Daniels, then Purdue University President, made these remarks during the university’s spring commencement ceremonies the weekend of May 13-15, 2022, in Purdue’s Elliott Hall of Music. Greetings, friends, and welcome. I should say “Welcome back.” We are back in Elliott Hall, where Purdue spring commencements belong, for the first time in three years. And as I’ll tell you in a few minutes, to me that matters beyond just the pleasure of returning to this beautiful, traditional venue. Starting with my first delivery of these remarks a decade ago, I have ended them ..read more

Conservatives love to talk about the progressive movement’s efficacy at penetrating culture, dominating the spheres of everything from entertainment to sports to education. Over the decades, the far left has conquered the institutions and the right side of the aisle is just beginning to retaliate. Some say conservative values are making a comeback while others contend that Western Civilization is too far gone to save. The jury is still out, and the verdict may depend on one crucial skill—the art of storytelling. Those who stand firm in traditional values and mores will never gain ground in the ..read more

In the 2004 film Collateral, silver-haired assassin Vincent (Tom Cruise) forces cab driver Max (Jamie Foxx) to taxi him to his various would-be targets throughout the night. In an early scene, an unsuspecting Max is patiently waiting outside when a dead body falls from a second-story window onto the hood of his cab. When Vincent returns to the scene and the realization sinks in that the hitman is responsible for the fresh corpse, a shocked Max accusingly asks, “You killed him?” Vincent, unfazed, coolly responds, “No, I shot him. Bullets and the fall killed him.” It is a distinction without a d ..read more

What future exists for American conservatism? As a lifelong conservative, I answer this question by looking to the past. The American conservative tradition has produced a host of luminaries since the 1952 publication of Russell Kirk’s The Conservative Mind, but there is one figure in particular that conservatives would do well to rediscover: poet and historian Peter Viereck (1916–2006). Viereck is one of the most insightful figures in postwar American conservatism, and one of the most compelling, despite the fact that he has been largely forgotten. A cursory survey of histories of conservatis ..read more

Thomas Jefferson was a complicated man. He owned over 600 enslaved people throughout his life, but he also famously wrote that “all men are created equal.” He was a passionate revolutionary, but he also became an icon to certain conservatives. Like the country he helped found, Jefferson contained multitudes. Liberty Fund senior fellow Hans Eicholz, in his book Harmonizing Sentiments, has set out to uncover the “coherent political tradition” amidst these complications and contradictions. Originally published in 2001, a second edition was released earlier this year addressing new developments in ..read more

By mid-summer, Chevron deference as we know it may be history. The Supreme Court could reform or even eliminate its forty-year-old doctrine that federal courts should generally defer to an agency’s reasonable interpretation of an ambiguous statute. How would the end of Chevron deference affect our constitutional institutions? It’s far too soon to know—and not just because the Supreme Court has yet to decide Relentless, Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo. Even if the Court eventually reforms the Chevron framework or erases it outright, the decision’s full im ..read more