Shugerman and Handelsman on Memory Warriors, Pluralists and Abnegators in Constitu[t]ional Interpretation: An Essay on Jack Balkin's Pluralist Originalism in Memory and Authority

Jed H. Shugerman, Boston University School of Law, and Zach S. Handelsman, McGill University, Department of Political Science, have published Memory Warriors, Pluralists and Abnegators in Constitu[t]ional Interpretation: An Essay on Jack Balkin's Pluralist Originalism in Memory and Authority.

Jack Balkin’s Memory and Authority: The Uses of History in Constitutional Interpretation brings into conversation the scholarly insights of constitutional theory, history, and the growing field of “the politics of memory,” especially the concept of the “memory entrepreneur.” Balkin appropriately connects the memory wars in American constitutional law back to Eastern European memory wars during the World Wars and their aftermath. Prompted by Balkin, we turn to Jan Kubik and Michael Bernhard edited volume Twenty Years After Communism (2014), which has become even more widely influential after Putin’s invasion of Ukraine and a new round of Eastern European memory wars. They propose four categories of memory entrepreneurs (“mnemonic actors”) in post-Soviet countries: “mnemonic warriors” who claim a single “true” interpretation of the past, opposed to all others who cultivate “wrong” or “false” interpretations; “mnemonic pluralists” who embrace multiple narratives and traditions; “mnemonic abnegators” who deny the significance of the past in favor of the present; and “mnemonic prospectives” who have a faith in an inevitable future (e.g., utopian Marxist historical materialists). We suggest this taxonomy may be a helpful guide for American constitutional politics. The “memory pluralist” category is perhaps the majority of American constitutional law professors, maybe even a plurality of the U.S. Supreme Court and the federal and state bench, who do not give exclusive weight to history, but still give substantial weight to history (e.g., Philip Bobbit’s modalities, Balkin’s “living originalism” and his “thin originalism.”). Some “thick originalists” are more “Memory Anti-Pluralists” than “Warriors.” We reserve the category of “Memory Warrior” for those constitutional interpreters who are consciously fighting for an exclusive, comprehensive national narrative of us vs. them. These warriors include ideological originalists (especially the ones who seem to rely on a general narrative arc rather than specific historical evidence), but they also may include the “history-and-tradition” conservatives, common-good constitutionalists, and perhaps some progressive-left memory warriors who have a more exclusive interpretation of past events than pluralists do. Balkin rightly criticizes originalism for its “memory entrepreneurialism” that narrows the field of who “counts” and who is excluded, exacerbating constitutional law’s democratic deficit. We think the “memory warrior” category helps sort out the more problematic approaches, and we suggest a solution: a high burden of proof about consensus and public meaning to mitigate this democratic deficit, to reduce judicial legitimacy problems, and to slow down “warrior” judicial activism.

Download the essay from SSRN at the link.