Jack Balkin

Digging a Hole: The Legal Theory Podcast

Welcome back, dear listeners, to season nine of Digging a Hole! We’re just as surprised as you are that we haven’t been taken off the air yet, but we’re here and ready to keep producing hit after hit— at least while Yale Law School keeps funding us, anyway. After a summer of roller-coaster legal and political action, we’re ready to help you navigate the turbulent times ahead. But before we get to current events, it’s worth dwelling on history. And today we’re excited to have on the pod our colleague Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School, to discuss his new book, sure to be a classic in constitutional theory, Memory and Authority: The Uses of History in Constitutional Interpretation.

To start off, Sam engages Balkin over the question of why, under the latter’s taxonomy, history isn’t a unique modality of constitutional interpretation. Next, Balkin explains what constitutional lawyers do, what makes their argumentative tools unique, and the relationship between history, memory, and the rhetoric of law. We dive into (what else?) originalism, both as an academic discipline with fancy conferences in San Diego and as a political ideology that reigns supreme in the courts (at least in cafeteria-form). If we haven’t piqued your interest, this episode features for the first time on the pod, according to our memory but perhaps not our history, one Mr. Hegel. Strap in and enjoy.

This podcast is generously supported by Themis Bar Review.

Referenced Readings

• Constitutional Interpretation by Philip Bobbitt

• The Philosophy of History by G.W.F. Hegel

• State Repression and the Labors of Memory by Elizabeth Jelin

• “Interdisciplinarity as Colonization” by Jack Balkin

• “The Crystalline Structure of Legal Thought” by Jack Balkin

• Introduction to the Philosophy of History by G.W.F. Hegel

• Zahkor: Jewish History and Jewish Memory by Yosef Hayim Yerushalmi

• “Collective Memory and Historical Consciousness” by Amos Funkenstein

• “What is a Nation?” by Ernest Renan