Memory, Invisibility, & Power

Introduction

“The ultimate mark of power may be its invisibility; the ultimate challenge, the exposition of its roots.”¹

When I teach constitutional law, I often encounter students who assume that constitutional interpretation is a simple reading of the Constitution’s text combined with the framers’ intent. That is what constitutional interpretation is, isn’t it? Jack Balkin’s Memory & Authority brilliantly shows how much more constitutional law is—and what a crucial and multifaceted role history and memory play within it.² The historical modality of constitutional interpretation is more than information about the framer’s intent. It is the diverse set of ways we use the past—and the lessons we draw from it—to debate constitutional meaning.

Balkin offers a keen critique of both conservative originalism and progressive living constitutionalism. The former he calls out for the narrowness of the history from which it draws and the segment of people to which it gives voice, and the latter he faults for ignoring the normative power of history altogether. He particularly wants to disabuse readers of the contention (or assumption) that constitutional interpretation demands only one use of history: obedience to the past, and often to a very narrow sliver of it. He aims his sharpest criticism at those who refuse to acknowledge that which histories we remember and erase, and the lessons we draw from those histories—such as whether we critique or seek to emulate that past—are normative choices selected from a vast array of alternatives.

It is also deceptive to reduce the use of history in constitutional interpretation to a command for obedience to the past, Balkin observes: It allows judges and lawyers to ignore the consequences of their choices as if they are not responsible for them. Balkin reads Justice Samuel Alito to maintain in Dobbs v. Jackson Women’s Health Organization that his hands are tied:³ History, Justice Alito claims, forecloses a constitutional right to abortion, not the decision of his majority. But, Balkin contends, the past does not mechanically determine our future; the choices we make in the present do, including the histories on which we choose to rely. Balkin urges us to aim for a braver and more transparent sort of constitutional argumentation that defends its choices and consequences, draws from a larger range of historical moments, and attends to a broader set of voices.

In this essay, I consider two related dynamics with respect to the uses of history in constitutional interpretation that bear heavily on any efforts at constitutional change: contestation over power and constitutional purposes. Both may pose an obstacle to the adoption of Balkin’s proposed form of constitutional interpretation, which he terms living originalism. I then conclude by exploring what might be needed to facilitate the broad adoption of democracy-advancing constitutional meaning, including more democratic uses of history.

I. Constitutional Memory & Power

Robert Cover famously described how “law and narrative are inseparably related.”⁴ No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning,” he observed.⁵ “Every prescription is insistent in its demand to be located in discourse—to be supplied with history and destiny, beginning and end, explanation and purpose.”⁶ Narratives, including the histories we tell, bind us together in a nomos—a normative universe.⁷ What they treat as natural so often renders it invisible.

Memory & Authority explains that cultural memory—our collective memory of the past—is important in part because of how it constructs the normal, the assumed, the natural. The particular form of cultural memory that Balkin is interested in is what Reva Siegel has termed constitutional memory—that is, collective memory of constitutional history.⁸ As Balkin aptly describes, “[m]emory has normative power because it structures common sense.”⁹ “[W]hat we remember (and do not remember) offers a sense of what is normal, natural, traditional, or to be expected and, conversely, what is abnormal, unusual, deviant, or unexpected.”¹⁰ Cultural memory, Balkin argues, thereby “shapes political and moral authority” and “what, if anything, we should do” about the current state of affairs.¹¹ Constitutional memory, in other words, is critical to the legitimation of power.¹²

This Part explores the tension between Memory & Authority’sacknowledgement, on the one hand, that constitutional memory constructs what we might call the normative universe of American constitutional law and, on the other, the book’s promotion of a capacious space for constitutional construction—that is, the recognition of a broad space of normative choice and contingency in constitutional meaning.¹³

I argue that the form of constitutional argument that Balkin endorses may be at odds with how various forms of power relate to cultural memory, at least in our current moment. The historian Michel-Rolph Trouillot has observed that in the study of history, it is “misleading [to] suggest[] that power exists outside the story and can therefore be blocked or excised . . . . [Power] precedes the narrative proper, contributes to its creation and interpretation.”¹⁴ Power is a complex phenomenon and comes in perhaps infinite varieties. My observation focuses on two overlapping forms of power. The first is power over the public imagination, which includes at least rhetorical, organizing, and media-influence components. The second is material power, including power within existing social hierarchies, institutions, and economic and political arrangements.

The silences, gaps in, and voices excluded from our cultural memory vitally bear on how power of both of these varieties renders itself so natural as to be invisible to the public imagination. Due to its key role in shaping what appears natural or not, “memory can either rationalize or condemn existing social relations,” as Memory & Authority describes.¹⁵ This naturalizing effect is something that originalism, as a form of both politics and cultural memory, keenly understands. Innovated in the 20th century, originalism does not engage in the transparency about its choices or normative commitments that Balkin advocates.¹⁶ In proffering originalism as a constitutional methodology, the conservative legal movement has engaged in a tremendously powerful and successful form of creativity. Originalism does not announce its revolutionary (and recent) approach to constitutional interpretation. Instead, it eschews the very idea that history may not be determinative or that moments or people other than the founders may be constitutionally relevant. In Balkin’s view, by shrouding its normative choices with a veneer of determinacy, originalism is duplicitous.¹⁷ But is originalism’s lack of candor not also part of why it is attractive, at least to the bench? Is the invisibility of the normative choices it makes, or that legal actors make in its name, not a part of its power?

My point is not about the effectiveness of opacity, but first, about what sorts of narratives lay powerful claims on the public imagination, and second, about how those narratives reflect existing distributions of material power. We might liken the former to how we assess the strength of some forms of storytelling over others. Justice Holmes’s opinion in Gitlow v. New York, which famously advances the importance of the freedom of speech, paints a captivating picture of rhetorical power: “Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth . . . . Eloquence may set fire to reason.”¹⁸ Anton Chekhov is often credited with the adage “show, don’t tell,” though this is a misquote. The original is,

[i]n descriptions of Nature one must seize on small details, grouping them so that when the reader closes his eyes he gets a picture. For instance, you’ll have a moonlit night if you write that on the mill dam a piece of glass from a broken bottle glittered like a bright little star, and that the black shadow of a dog or a wolf rolled past like a ball.¹⁹

These instructions have been reformulated as, “Don’t tell me the moon is shining; show me the glint of light on broken glass.”²⁰ The moon becomes somehow more real and resonant with our personal experiences depending on how language constructs an imaginary world.

Conservative originalism has made a powerful claim on the public imagination. As Balkin and Siegel explore, it reflects and institutes in law historic political social inequities.²¹ In decisions announcing the rollback of affirmative action and the right to abortion, for instance, the Court acted as if history required its result, without addressing alternate histories that undermine those conclusions.²² Historians and political scientists have demonstrated that what we now call originalism “grew directly out of political resistance to Brown v. Board of Education by conservative governing elites, intellectuals, and activists in the 1950s and 1960.”²³ Drawing on Trouillot, we might analyze cases such as Dobbs and Students for Fair Admission v. Harvard as relying on selective histories to entrench or revive materially unequal power hierarchies.

There is an important causal question as to why the Dobbs and SFFA majorities, and conservative originalism more broadly, adopted this approach of treating constitutional interpretation, and often status inequality, as compelled. Why has that approach continued to be successful? Did originalism become influential because the story it tells connected constitutional meaning with widely held beliefs, including those about current status relationships?²⁴ Perhaps it resonated with ideas so deeply held that it did not need to address their choice. Or has the conservative movement been so effective at embedding the originalist narrative in the American collective imagination that it now seems so obvious to many that it need not justify itself? Whichever way the causal arrows run, it is hard to deny that conservative originalism pursues a discourse of historical inevitability and that it is a prominent view of constitutional meaning. This is why many students arrive at my class believing that originalism simply is constitutional interpretation.

Contemporary originalism did not introduce unjust atavism into American law. The role of the Dunning School in the development of post-Reconstruction U.S. constitutional law offers a striking example of historical narrative that presents unequal status relationships as inevitable.²⁵ As Balkin has elsewhere argued, the Supreme Court played a key role in the nation’s retreat from the ideals of Reconstruction by “systematically undermin[ing] Congress’s powers to enforce the Reconstruction Amendments.”²⁶ Eric Foner observes that:

Historians and political scientists, especially those at Columbia University, led by John W. Burgess and William A. Dunning, played a powerful and disreputable part in fastening onto the national consciousness an image of Reconstruction as a disastrous error, an era of misgovernment and corruption, the lowest point in the saga of American democracy . . . . The fundamental reason for Reconstruction’s abuses, these scholars argued, was the decision to grant the right to vote to black men, who were congenitally incapable of exercising it intelligently.²⁷

This view of Reconstruction, long embedded in both popular memory and Supreme Court precedent, “carried clear political lessons.”²⁸ Foner concludes, in accordance with Trouillot, that the power and persistence of that historical narrative “may be explained in large measure not by the superiority of its scholarship, which in fact was often very questionable . . . but by the fact that it was congruent with the racial system of the United States from the late nineteenth century until the civil rights era.”²⁹ The prerogatives of power—including over political advantage, racial dominance, professional success, and Black labor and the fortunes it underwrote—pervade the Dunning School’s narrative and its influence in the Court and public imagination. Foner traces how even decades after prominent revisionist histories refuted Dunning School histories, the Supreme Court continued to rely upon its narratives.³⁰ Not until the 1960s did the Court address or incorporate alternate histories³¹ —and contemporary courts continue to favorably cite and reaffirm precedents grounded in the white supremacist narrative of history adopted by early cases and advanced by the Dunning School.³²

Critical-race and feminist-theory scholars have analyzed law and legal practices to reveal their assumptions about the status of women and people of color and illuminate the law’s role in power and inequality.³³ We can also look to legal practices, including court opinions, to see how they use the past to enforce inequalities. Consider Bradwell v. Illinois.³⁴ The case presented the question of whether Illinois could constitutionally bar women from becoming lawyers, or whether pursuing that vocation was a privilege or immunity under the newly passed Fourteenth Amendment.³⁵ Bradwell is read for the proposition that the framers of the Fourteenth Amendment did not intend it to include rights against sex discrimination.³⁶ The opinion is fascinating for how it uses history and social norms to reach that result:

It certainly cannot be affirmed, as an historical fact, that [becoming a lawyer] has ever been established as one of the fundamental privileges and immunities of the [female] sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman . . . . The constitution of the family organization, which is founded in the divine ordinance as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood . . . . So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband . . . .³⁷

History tells us, in other words, that the founders of both the Constitution and the common law, as well as “divine ordinance” and “the nature of things,” assigned women a certain social role that did not include pursuing law.³⁸ Those “firmly fixed” social “fact[s]” render any other constitutional interpretation untenable.³⁹

Dred Scott v. Sanford follows a similar logic to stress the inevitability of inequality.⁴⁰ It addressed whether “a negro, whose ancestors were imported into this country, and sold as slaves, [can] become a member of the political community formed and brought into existence by the Constitution of the United States . . . .”⁴¹ Justice Taney responded with a resounding no:

We think . . . they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary . . . . [t]hey had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.⁴²

I reprint the passage as a whole because it is so striking. Taney focuses on the “fixed,” “universal,” and “axiom[atic]” nature of these beliefs, about which there was not even “a moment” of doubt.⁴³ Why does this matter? “We refer to these historical facts,” Taney explains,

[F]or the purpose of showing the fixed opinions concerning that race, upon which the statesmen of that day spoke and acted. It is necessary to do this, in order to determine whether the general terms used in the Constitution of the United States, as to the rights of man and the rights of the people, was intended to include them, or to give to them or their posterity the benefit of any of its provisions.⁴⁴

This (selected) history, in other words, determined then-current constitutional meaning. The Court’s hands were tied, Taney averred:

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.⁴⁵

There’s nothing I can do, Taney seems to say: History prevents Black Americans from ever becoming part of the country’s political community.

Both the Bradwell and Dred Scott opinions leverage history to explain demands for change not as claims to justice but attempts to pervert the natural order of things. The narratives they tell might be seen as anxious in their assertion of the fixity and naturalness of that order, perhaps due to then-growing challenges to slavery, coverture, and the larger hierarchies of which they were a part. We might note a difference, for example, between the Court’s terse rejection in 1972 of a case claiming a right to same-sex marriage in Baker v. Nelson, which stated only that the petition was “dismissed for want of substantial federal question,”⁴⁶ and the Court’s elaboration of the “ancient roots” of laws against same-sex sex in Bowers v. Hardwick almost fourteen years later.⁴⁷

It is not only judges who may be drawn to versions of history that appear to provide easy answers. As Balkin notes, in the face of the anxieties of modernity, many gravitate to religious fundamentalism for its epistemic simplicity.⁴⁸ I would add that modernity’s upheavals may also lead to a desire for determinacy and for the illusion that we are not responsible for fraught choices. In times of tumult and change, the histories we rely on can give meaning to our insecurities or losses and provide stability by situating us as noble protagonists in the arc of change.

Hannah Arendt has described the desire to view complex historical changes as the product of a single, simple cause.⁴⁹ Such explanations respond to the hunger for an overarching explanation for historically contingent and often unexplainable loss. For example, the historian Benjamin Carter Hett describes how post-war Germany proved fertile for the rise of authoritarianism: “The realities that Germans faced after 1918 were all but unacceptable: a lost war that had cost the nation almost two million [lives], a widely unpopular revolution, a seemingly unjust peace settlement, [] economic chaos accompanied by huge social and technological change,” and globalization.⁵⁰ About the rise of totalitarian movements in the early twentieth century, Arendt explained “that nineteenth century capitalism’s production of ‘superfluous wealth and superfluous men’ shredded the traditional European class system and created a mass society of atomized individuals, who no longer understood their place in the world, and were therefore ripe for recruitment into mass movements peddling meaning . . . .”⁵¹

Many of the emancipatory narratives that caught fire in the public imagination over the last century, too, used history to tell stories of what is right and wrong. Martin Luther King, Jr.’s I Have a Dream speech, for example begins:

Five score years ago, a great American, in whose symbolic shadow we stand today, signed the Emancipation Proclamation. This momentous decree came as a great beacon light of hope to millions of Negro slaves who had been seared in the flames of withering injustice . . . . But 100 years later, the Negro still is not free . . . . When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir . . . . It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked insufficient funds . . . . Now is the time to make real the promises of democracy.⁵²

My point is not to draw a substantive line between conservative originalism and either the authoritarian or civil rights movements of the last century, but instead to observe that many of the narratives that have most powerfully ignited the public imagination relied on simple, powerful historical narratives. They did not, as Balkin espouses, dwell on the constructed nature of their historical narratives. Put crudely, deconstruction may be a more powerful mode of critique than an effective or inspiring politics. MLK, Jr. did not pause any longer than Edwin Meese⁵³ to explain the contingency of his construction of the past or the deep contestation of his claims about constitutional meaning and power. Both men presented history as normatively demanding certain actions in the present.

This is of course why we fight over cultural memory, because it so profoundly shapes what we should do now and in the future. The ferocity of battles over the choice of history textbooks in public schools,⁵⁴ efforts to ban critical race theory and certain books, misinformation about the human role in climate change, and attempts by authoritarian regimes to censure speech and independent journalism are all reflections of the stakes of these fights. The assumed naturalness of entrenched narratives is also why critical histories are so effective: They pull back the curtain and show the world not to be as assumed. Counternarratives and revisionist histories are dangerous to existing power structures.

Taking up Balkin on his call for a capacious space for constitutional construction may also conflict with currently popular conceptions of the rule of law and role of judges. Using a now-ubiquitous analogy, Chief Justice Roberts, in his confirmation hearings testified that:

Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role . . . . If I am confirmed, . . . I will remember that it’s my job to call balls and strikes, and not to pitch or bat.⁵⁵

Following the legacy of the Legal Process School,⁵⁶ a strong professional norm in U.S. legal culture maintains that judges should not only treat litigants equally, regardless of wealth or status, but also that they should base their decisions on “neutral principles,”⁵⁷ understood as pre-existing rules of the game.⁵⁸ This view of judging is certainly contingent (and is informed by the conservative legal movement); but its present popularity evidences a source of resistance to acknowledging a broad space of constitutional construction.

There are many among us who might have preferred that Justice Alito had been explicit about his choice in Dobbs to rely only upon the voices and choices of men of the Founding and Second Founding generations, while giving the back of the hand to the experiences of women, past and present. Many would have liked the Court to have justified that choice. But that approach would have abrogated the strength of Alito’s narrative, even if it would not have changed its outcome. The stories that have made the most powerful claims on the public imagination do not focus on contingency or narrative choice—they make normative demands on the present. This dynamic between cultural memory and power stands as an obstacle to the adoption of Balkin’s proposal for constitutional construction.

II. Contested Constitutional Purposes & Constitutional Memory

Balkin makes a strong case that constitutional interpretation should be informed by a broader set of voices than those of the (white, male, propertied) framers alone. Judges, academics, and litigators, he urges, should rely on the writings and views not only of James Madison and Thomas Jefferson, but also Frederick Douglass, Elizabeth Cady Stanton, formerly enslaved people, and women and people of color more broadly.⁵⁹ He contends that doing so is more democratic and better promotes constitutional legitimacy because a broader range of people can see themselves as part of the constitutional project.⁶⁰

Memory & Authority proposes a constitutional discourse that recognizes that we determine our constitutional future while also remaining faithful to the past by forwarding the Constitution’s fundamental purposes. Balkin does not, however, identify what those purposes are or should be (although he elsewhere appears to take democracy and democratic legitimacy as being among them). Instead, he contends that framing the Constitution’s core purposes narrowly will make consensus about them more likely. There is, however, fierce disagreement over even the most basic constitutional purposes, including whether and the extent to which they include democracy or democratic legitimacy.

Democracy and democratic legitimacy—and their predicate requirement that we are or should be treated as equal citizens—are currently very much in dispute. Several Supreme Court justices appear to disagree that democracy, at least as understood in Memory & Authority, is a core constitutional purpose. If they did, one might imagine that the majority in Dobbs would have felt compelled to include the voices and experiences of women in its analysis or historical narrative. And thick, contemporary democratic legitimacy—in the sense that all Americans should be able to see themselves as part of the constitutional project—is certainly not an undisputed constitutional purpose.⁶¹

This may be in part because one’s own constitutional memory and understanding of the core purposes of the Constitution is informed by intersecting normative universes.⁶² For example, a deep commitment, faith-based or otherwise, to a moral ordering that requires certain sex-based roles might prompt a constitutional interpreter to exclude from their analysis stories of women that run counter to those roles. One might genuinely take the view that constitutional authority depends solely on text and framer intent and so, for example, believe that interpretations of the Fourteenth Amendment should not include narratives of women’s participation. Regardless, a desire to rely on such narratives might be hindered by a history of unequal storytelling: Because of sex-based power relations in the Founding and Second-Founding eras, many narratives that might contest the naturalness or inevitability of unequal sex-based roles may not have been written or may be difficult to unearth.

Many other factors may influence whether we see thick understandings of democracy or democratic legitimacy as core constitutional purposes requiring us to include more voices in our constitutional memory. For instance, exclusion from popular media of certain narrativess (including as directed by the incentives of attention-based, identity-affirming business models) may influence whether one views various social groups, such as immigrants or members of the LGBTQ+ community, as part of We the People; and, by extension, whether we see broad democratic participation or a national constitutional community as possible or desirable. Parts of our constitutional structure—such as the Electoral College and the Senate—could also be understood as drawing a thick understanding of democracy into question.

At the least, it is difficult to argue that thick views of democracy and democratic legitimacy are uncontested core constitutional purposes today. I do not take Balkin to genuinely dispute this point, but instead to be making a normative claim that democracy and democratic legitimacy should be understood as core constitutional purposes. But we cannot ignore that significant portions of the public are only tenuously commited to democracy in our current moment. Even leaving aside what might be described as historical narratives and constitutional interpretations chosen because they ensure an outcome that promotes the material power of the interpeter’s in-group, there are constitutional interpreters for whom a thick understanding of democracy may not be a core constitutional purpose. What reason is there for these thinkers to attend to a wider range of historical narratives? My point is that this question is distinct and prior to the question of whether, as a sociological matter, the lack of consensus around thick democracy may delegitimatize our constitutional order.

III. Democratizing History & Empowering The Future

Democratizing history in constitutional interpretation would require new narratives about We the People that are powerful enough to displace now-dominant rival claims on the collective imagination and the constitutional memory of those in power. This Part explores what might empower constitutional interpretation rooted in broad participation,⁶³ including, as Balkin urges, the stories and past voices that would inform a rich democratic foundation for constitutional meaning.

This project would require several kinds of democratic histories: (1) histories of broad-based participation; (2) examples of approaches to constitutional interpretation that do not view the constitutional project as frozen in the past, including those that permit the alteration of status hierarchies; (3) histories describing how constitutional discourses and the histories they rely upon have changed; and (4) histories that demonstrate trust and unity across difference.

Reconstruction is a key source of the first two sorts of histories. Reconstruction and the Reconstruction Amendments were a watershed in American history in which the meaning of American democracy fundamentally changed. Following emancipation, Black social movements across the South, often organized into conventions, made far-reaching constitutional demands. They articulated a vision of constitutional freedom that went beyond the absence of chattel slavery—newly freed people explored what constitutional freedom meant. Many Black constitutional thinkers believed such freedom included full participation in public and private civic institutions, land to sustain themselves economically and ensure their political freedom, and education for themselves and their children.⁶⁴ Many saw democracy not as voting rights alone, but as a cluster of rights and obligations spanning many forms of participation. Those thinkers also, unsurprisingly, believed that constitutional meaning was forward-looking, not tethered to the past; the very point of the Reconstruction Amendments, they believed, was to alter, not fortify, existing power hierarchies. As I argue elsewhere, this view of democracy can and should inform contemporary understandings of the freedom of speech and the forms of democratic participation it protects.⁶⁵

Jonathan Gienapp has documented how Founding-era constitutionalism was not positivist in the sense that modern originalism assumes—meaning “written law that was intentionally constructed, enacted, and commanded by authorized lawmakers” such that the Constitution “only acquired content as the delegates added words to parchment.”⁶⁶ Founding-era constitutionalists, Gienapp shows, instead “tended to think that much of law was ‘out there’—like the principles of mathematics or natural philosophy—awaiting discovery though reason and observation.”⁶⁷ Unlike contemporary originalists, the Founding generation, like many of the Second Founding, did not see the Constitution as an object that froze the law in the past.

Expanding the set of narratives that inform our constitutional understanding depends on the third sort of history—scholarship on the forms of constitutional politics and mobilization that have affected significant changes in public and elite understandings of constitutional meaning. That scholarship could inform the strategies and efforts of the many actors that would be needed to effectuate the adoption of a form of constitutionalism that views democracy and democratic legitimacy as at its core.

A significant literature has traced, for example, the ways in which the conservative legal movement over roughly half a century has shifted public law and the public conception of constitutional meaning in a myriad of ways.⁶⁸ Historians and legal thinkers have likewise explored why the Court and ultimately most of the American public shifted its understanding of equal protection from Dred Scott’s “separate but equal” to Brown v. Board’s rejection of segregation.⁶⁹ On any account, it took generations and intense social and political mobilization to accomplish the still-limited forms of racial equality realized in the United States. Much ink has similarly been spilled in history and the social sciences exploring the forces that produced the seismic shift in constitutional meaning wrought by the New Deal.⁷⁰ Those forces included the rise of the U.S. labor movement, the legal realist intellectual movement, industrialization, and the Great Depression, among others.

In law, however, despite a relatively robust intellectual tradition of democratic constitutionalism, there is less focus on the practicalities of how alternate constitutional narratives were developed and popularized. Much of that knowledge resides in the minds, papers, and archives of lawyers and social movement organizations, such as the NAACP, the ACLU, the U.S. Chamber of Commerce, and the Alliance Defending Freedom. For American cultural memory to move toward collective acceptance of a thick version of democracy that integrates a broader set of voices and experiences, it will take the work of many organizers, politicians, thinkers, historians, and storytellers—if not also a monumental event like the Civil War, World War II, or the Great Depression, each of which were instrumental in the seismic constitutional shifts of nineteenth and twentieth centuries.

In an era of sharp polarization and identitarianism⁷¹ in which trust in democracy and our institutions are at an all-time low,⁷² the fourth sort of history—narratives that demonstrate trust and unity across difference—may be necessary to ensure public belief in constitutional democracy. The fact that many Americans see broad-based democracy as a core constitutional purpose can be attributed in significant part to the generations-long fight for racial freedom and equality, spanning from before emancipation through the civil rights movement. We must remember that many contemporary constitutional beliefs and assumptions around democracy, equality, and constitutionalism are the products, too, of the thirty years of relative equality that occurred in the middle of the last century—which was a striking historical anomaly, not the norm.⁷³

We cannot, as Balkin does, treat American democracy or agreement over its importance as foregone conclusions. To the contrary, one of the most pressing issues of our time is whether constitutional democracy is possible with such extreme levels of distrust and polarization.⁷⁴ If we are to ensure that constitutional democracy will continue as a project in the United States, we must share more compelling histories and narratives about the importance of a shared world.

1. Hazel V. Carby, Foreword to the 20th Aniversary Edition of Michel-Rolph Trouillot, Silencing the Past: Power and the Production of History xxiii (2025 ed. 1995). ↩︎
2. See generally Jack Balkin, Memory and Authority (2024). ↩︎
3. 597 U.S. 215 (2022). ↩︎
4. Robert M. Cover, Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4, 5 (1983). ↩︎
5. Id. at 4. ↩︎
6. Id. at 5. This demand includes, he says, that “[f]or every constitution there is an epic.” Id. at 4. ↩︎
7. See also Carol M. Rose, Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory, in Property & Persuasion: Essays on the History, Theory, and Rhetoric of Ownership 25, 40 (1994) (“According to the narrative theorists, the teller of the tales has a vision of some kind of community, even if it is only a community of two. The storyteller places herself with the audience experiencing the tale; she takes a clutch of occurrences and through narrative reveals them for her audience as actions, with beginnings, middles, and ends—actions in which the audience can imagine themselves as common participants or common observers.”). ↩︎
8. Balkin, supra note 2, at 6. ↩︎
9. Id. at 183. ↩︎
10. Id. ↩︎
11. Id. ↩︎
12. See Reva B. Siegel, Memory Games: Dobbs’s Originalism as Anti-Democratic—Living Constitutionalism and Some Pathways for Resistance, 101 Tex. L. Rev. 1127, 1130 (2023); id. at 1133 (“Originalism turns to the past in search for authority whose claim on the collective imagination is powerful enough to displace—and ultimately to kill off—rival claims on the collective imagination.”). See generally Serena Mayeri, The Critical Role of History after Dobbs, 2 J. Am. Const. Hist. 171 (2024). ↩︎
13. See Balkin, supra note 2, at 120-48. ↩︎
14. Trouillot, supra note 1, at 28-29. ↩︎
15. Balkin, supra note 2, at 183; see also Reva B. Siegel, The Politics of Constitutional Memory, 20 Geo. J.L. & Pub. Pol’y 19, 23 (2022) (“Because constitutional memory is employed to legitimate the exercise of authority, constitutional memory has a politics . . . it can help rationalize all manner of governmental and societal relationships.”). ↩︎
16. See, e.g., Siegel, Memory Games, supra note 12, at 1132-33 (“Originalism took shape as a value-laden, goal-oriented politics in the Justice Department of the Reagan Presidency before originalism was elaborated as a presumptively value-neutral method of interpretation in the legal academy . . . . When originalists called for constitutional change as constitutional restoration, they were tapping into a fundamental set of beliefs about the difference between politics and law . . . . Appealing to the Founders’ Constitution invoked understandings about authority and identity that are rooted in the Nation’s creation story. A claim on constitutional memory transmuted politics into law.”); Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191, 192 (2008) (“On the originalism view, the Court is merely enforcing the judgments of eighteenth-century Americans, who, in an epochal act of constitutional lawmaking, ratified [the] Bill of Rights . . . . [On this account,] the Court stands above the fray, disinterested, merely executing the commands of Americans long deceased.”). ↩︎
17. See Balkin, supra note 2, at 72-73. ↩︎
18. 268 U.S. 652, 673 (1925) (Holmes, J., dissenting). ↩︎
19. Avrahm Yarmolinsky, The Unknown Chekhov: Stories and Other Writings Hitherto Untranslated 14 (Farrar, Straus and Giroux 1999). ↩︎
20. See, e.g., Katti Jisuk Seo, The Glint of Light on Broken Glass Or: The Power of the Micro-Moment, 5 J. Solution Focused Pracs. 51, 53 (2021). ↩︎
21. See supra note 15 and accompanying text. ↩︎
22. See, e.g., Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll. (SFFA), 143 S. Ct. 2141, 2175-76 (2023); Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242-43 (2022). ↩︎
23. Calvin Terbeek, “Clocks Must Always Be Turned Back”: Brown v. Board of Education and the Racial Origins of Constitutional Originalism, 115 Am. Pol. Sci. Rev. 821, 821 (2021); see also Logan Sawyer III, Originalism from the Soft Southern Strategy to the New Right: The Constitutional Politics of Sam Ervin Jr, 33 J. Pol’y Hist. 32, 33-34 (2021) (describing the role of originalism in “the South’s determined resistance to civil rights legislation through the mid-1960s” and “redefining southern conservatism and thus helping to produce the contemporary Republican Party”); Logan E. Sawyer III, Partisan Jurisprudence: A Political History of Originalism, 1942–1992, at 45 (forthcoming) (draft on file with author) (discussing the Reagan administration’s adoption of the argument “that the founders of the 14th Amendment were committed to a ‘color blind’ Constitution,” meaning that “Brown was correct, but also that race conscious efforts to address racial discrimination – including affirmative action and government contracting set-asides – were impermissible.”). ↩︎
24. Balkin appears to at least partially agree. See Balkin, supra note 2, at 174 (“Conservative originalism has succeeded . . . . [because it] has given people a way to connect their vision of the world to the authority of the Constitution, and to articulate their political objections in terms of fidelity to the Constitution.”). ↩︎
25. See infra note 27. ↩︎
26. Jack M. Balkin, The Reconstruction Power, 85 N.Y.U. L. Rev. 1801, 1820 (2010). ↩︎
27. Eric Foner, The Supreme Court and the History of Reconstruction—and Vice-Versa, 112 Colum. L. Rev. 1585, 1589-90 (2012). ↩︎
28. Id. at 1590. ↩︎
29. Id. ↩︎
30. Id. ↩︎
31. Id. at 1596. ↩︎
32. See, e.g., Civil Rights Cases, 109 U.S. 3, 21-22, 25 (1883) (“When a man has emerged from slavery, . . . there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws[.]”); United States v. Morrison, 529 U.S. 598, 602, 621-22 (2000) (reaffirming the state action doctrine established in the Civil Rights Cases that Section 5 of the Fourteenth Amendment ordinarily does not grant Congress the power to regulate private actors); Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2394, 2399-03 (2024) (reaffirming the state action doctrine). ↩︎
33. See generally, e.g., Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1334-36 (1988) (challenging critiques of the civil rights movement and civil rights reforms); Raymond Magsaysay, Comment, Asian Americans and Pacific Islanders and the Prison Industrial Complex, 26 Mich. J. Race & L. 443, 447-56 (2021) (analyzing the invisibility of criminalized Asian Americans and Pacific Islanders in critical analyses of crime and carcerality); Catharine A. MacKinnon, Pornography, Civil Rights, and Speech, 20 Harv. C.R.-C.L. L. Rev. 1, 3-8 (1985) (addressing pornography’s role in sex discrimination); Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim’s Story, 87 Mich. L. Rev. 2320, 2321-23 (1989) (addressing tension between the real harm of racist speech and the need to strengthen collective commitment to freedom of discourse); Lani Guinier, Forward: Demosprudence Through Dissent, 122 Harv. L. Rev. 4, 12-18 (2008) (arguing oral dissents have potential to root disagreement about the meaning and interpretation of constitutional law); Randall L. Kennedy, Racial Critiques of Legal Academia, 102 Harv. L. Rev. 1745, 1745-49 (1989) (analyzing writings examining effect of racial difference on the distribution of scholarly influence in legal academia); Robin West, Jurisprudence and Gender, 55 U. Chi. L. Rev. 1, 2-4 (1988) (addressing how feminist legal theory can contribute to the evolution of humanist jurisprudence); Martha Minow, Feminist Reason: Getting It and Losing It, 38 J. Legal Educ. 47, 47-48 (1988) (pursuing critique initiated by feminist work); Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518, 518-19 (1980) (explaining why school desegregation had in large part failed and what can be done to bring about change). ↩︎
34. 83 U.S. 130 (1 Wall.) (1872). ↩︎
35. Id. at 137-39. ↩︎
36. Id. at 139. ↩︎
37. Id. at 141 (Bradley, J., concurring). ↩︎
38. Id. ↩︎
39. Id. ↩︎
40. 60 U.S. 393 (1 How.) (1857). ↩︎
41. Id. at 403. ↩︎
42. Id. at 404, 407. ↩︎
43. Id. at 407. ↩︎
44. Id. at 409. ↩︎
45. Id. at 405. ↩︎
46. 409 U.S. 810, 810 (1972) (mem.). ↩︎
47. 478 U.S. 186, 192 (1986). ↩︎
48. Balkin, supra note 2, at 69. ↩︎
49. Hannah Arendt, The Origins of Totalitarianism 457 (2d 1958). Arendt described this phenomenon as “supersense,” that is, when totalitarian ideologies “pretended to have found the key to history or the solution to the riddles of the universe.” Id. It is supersense that gives “the contempt for reality its cogency, logicality, and consistency.” Id. at 458. She observes that totalitarian destruction of human dignity springs from this need for total consistency because,
    [n]o ideology which aims at the explanation of all historical events of the past and at mapping out the course of all events of the future can bear the unpredictability which springs from the fact that men are creative, that they can bring forward something so new that nobody ever foresaw it.
    Id. ↩︎
50. Benjamin Carter Hett, The Death of Democracy 13 (2018). ↩︎
51. David Luban, Hannah Arendt Meets QAnon: Conspiracy, Ideology, and the Collapse of Common Sense, 2021 Geo. L. Fac. Publ’ns & Other Works 2384 (manuscript at 12), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3852241 [https://perma.cc/5VSH-WCZT] (citing Hannah Arendt, The Origins of Totalitarianism 200, 225 (3d ed. 1994)). ↩︎
52. Read Martin Luther King Jr.’s ‘I Have a Dream’ speech in its entirety, NPR (Jan. 16, 2023, 10:32 AM), https://www.npr.org/2010/01/18/122701268/i-have-a-dream-speech-in-its-entirety [http://‌perma.cc/‌7DNF-H6KM]. ↩︎
53. Meese served as Attorney General during Ronald Reagan’s second term and was an instrumental advocate of originalism whose Department of Justice popularized the theory. See, e.g., Elizabeth Slattery, William Pryor & the Hon. Edwin Meese, The Originalism Revolution Turns 30: Evaluating Its Impact and Future Influence of the Law, The Heritage Found. (Jan. 26, 2017), https://www.heritage.org/the-constitution/report/the-originalism-revolution-turns-30-evaluating-its-impact-and-future [https://perma.cc/3J4D-9P76] (“[C]ommemorating the start of the originalism revolution 30 years ago as well as three speeches delivered by then-Attorney General Ed Meese . . . . Due to the efforts of Meese and other originalists, this theory of constitutional interpretation has permeated the judiciary and the academy.”). ↩︎
54. Recent examples include the Oklahoma Board of Education’s proposal that high school students be asked to identify “discrepancies” in the 2020 presidential election. Sarah Mervosh, Oklahoma Proposes Teaching 2020 Election ‘Discrepancies’ in U.S. History, N.Y. Times (Mar. 14, 2025), https://www.nytimes.com/2025/03/14/us/oklahoma-2020-election-history-standards.html [https://‌perma.cc/L7BS-J9A9]. ↩︎
55. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. On the Judiciary, 109th Cong. 109-158, at 55-56 (2005) (Statement of John G. Roberts, Jr.), https://www.govinfo.gov/content/pkg/GPO-CHRG-ROBERTS/pdf/GPO-CHRG-ROBERTS.‌‌pd‌f [https://‌perma.cc/XV36-EY3K]. ↩︎
56. See Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 145 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (discussing the need for uniformity in the application of law); William N. Eskridge, Jr. & Phillip P. Frickey, The Making of The Legal Process, 107 Harv. L. Rev. 2031, 2048-49 (1994) (explaining that the legal process tradition “designated the judiciary as the guardians of rule-of-law values and envisioned the duty of judges to be the reasoned elaboration neutral principles and legislative purposes”(footnotes and quotation marks omitted)). ↩︎
57. Cf. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 16 (1959). ↩︎
58. See generally Gary Peller, Neutral Principles in the 1950’s, 21 U. Mich. J.L. Reform 561, 568-72 (1988) (critiquing neutral principles). ↩︎
59. Balkin, supra note 2, at 214-15. ↩︎
60. Id. at 217. ↩︎
61. We might point to recent disputes over birthright citizenship; diversity, equity, and inclusion initiatives; or the 2017 Unite the Right rally in Charlottesville as evidence of this point. See Abbie VanSickle, Supreme Court to Hear Arguments on Trump Plan to End Birthright Citizenship, N.Y. Times (Apr. 17, 2025), https://www.nytimes.com/2025/04/17/us/politics/supreme-court-birthright-citizenship.html [https://perma.cc/7GDJ-EDP6]; Sarah Mervosh & Dana Goldstein, A Legal Battle Over Trump’s Threats to Public School Funding Has Begun, N.Y. Times (Apr. 17, 2025), https://www.nytimes.com/2025/04/17/us/dei-public-schools-trump-administration-lawsuit.html [https://perma.cc/9FQC-WCRN]; Neil MacFarquhar, The Charlottesville Rally Civil Trial, Explained, N.Y. Times (May 5, 2025), https://www.nytimes.com/live/2021/charlottesville-rally-trial-explained [https://perma.cc/7JFA-447Q]. ↩︎
62. Cover, supra note 4, at 5-7. ↩︎
63. For my other scholarship urging such a framework, see Amanda Shanor & Sarah E. Light, Greenwashing and the First Amendment, 122 Colum. L. Rev. 2033, 2080-81 (2022); Amanda Shanor, What Reconstruction Means for the Freedom of Speech (unpublished manuscript at 35) (on file with author). ↩︎
64. See, e.g., W.E.B. Du Bois, Black Reconstruction in America 232-35, 585, 638, 641 (1935); Sarah L.H. Gronningsater, The Rising Generation: Gradual Abolition, Black Legal Culture, and the Making of National Freedom 3-4 (2024); Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution 51 (2019); Eric Foner, Reconstruction: America’s Unfinished Revolution 1863–1877, 94-110 (2014); Eric Foner, The Story of American Freedom 100-03 (1988); cf. Students for Fair Admissions, Inc. v. President and Fellows of Harv. Coll., 143 S. Ct. 2141, 2263-79 (2023) (Jackson, J., dissenting). ↩︎
65. See generally Shanor, Reconstruction, supra note 63. ↩︎
66. Jonathan Gienapp, Written Constitutionalism, Past and Present, 39 L. & Hist. Rev. 321, 323 (2021); see also Jonathan Gienapp, Against Constitutional Originalism: A Historical Critique 76-78 (2024). ↩︎
67. Gienapp, Written Constitutionalism, supra note 66, at 324. ↩︎
68. See supra notes 12, 15, 23 (collecting citations); see also, e.g., Amanda Shanor & Sarah E. Light, Anti-Woke Capitalism, the First Amendment, and the Decline of Libertarianism, 118 Nw. U. L. Rev. 347, 391, 393-404 (2023); David Cole, Engines Of Liberty: The Power Of Citizen Activists To Make Constitutional Law 95-148 (2016); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 155-64 (2016); Amanda Hollis-Brusky, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution 1-30 (2015); Jacob S. Hacker & Paul Pierson, Winner-Take-All Politics 95-162(2010); Kim Phillips-Fein, Invisible Hands 169-73 (2009). See generally Nancy Scherer & Banks Miller, The Federalist Society’s Influence on The Federal Judiciary, 62 Pol. Rsch. Q. 366 (2009); Steven M. Teles, The Rise of the Conservative Legal Movement (2008); Jerome L. Himmelstein, To the Right (1990). ↩︎
69. See, e.g., Bell, supra note 33, at 518-19; Richard Kluger, Simple Justice 706-07 (1975); Constance Baker Motley, Equal Justice Under Law 108-10 (1998); Carol Anderson, Eyes Off the Prize 267 (2003); Lawrence Goldstone, Separate No More 225-27 (2021); 3 Bruce Ackerman, We the People: The Civil Rights Revolution 129-32 (2014). ↩︎
70. 2 Bruce Ackerman, We the People: Transformations 23 (1998); David M. Kennedy, Freedom from Fear 363 (2001); Richard Hofstadter, The Age of Reform: From Bryan to F.D.R. 270-314 (1955); Daniel E. Ho & Kevin M. Quinn, Did a Switch in Time Save Nine?, 2 J. Legal Analysis 69, 70 (2010); Alan Brinkley, AHR Forum: The Debate over the Constitutional Revolution of 1937, 110 Am. Hist. Rev. 1046, 1046 (2005); Laura Kalman, AHR Forum: The Constitution, the Supreme Court, and the New Deal, 110 Am. Hist. Rev. 1052, 1052 (2005); William E. Leuchtenburg, AHR Forum: Comment on Laura Kalman’s Article, 110 Am. Hist. Rev. 1081, 1083 (2005); G. Edward White, AHR Forum: Constitutional Change and the New Deal: The Internalist/Externalist Debate, 110 Am. Hist. Rev. 1094, 1094 (2005); William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt 247 (1995). ↩︎
71. Christopher Weber & Samara Klar, Exploring the Psychological Foundations of Ideological and Social Sorting, 40 Pol. Psych. 215, 215-16 (2019); Shanto Iyengar, Yphtach Lelkes, Matthew Levendusky, Neil Malhotra & Sean J. Westwood, The Origins and Consequences of Affective Polarization in the United States, 22 Ann. Rev. Pol. Sci. 129, 130 (2019); Peter Törnberg Claes Andersson, Kristian Lindgren & Sven Banisch, Modeling the Emergence of Affective Polarization in the Social Media Society, Plos One 1, 2 (2021). ↩︎
72. 2025 Edelman Trust Barometer Reveals High Level of Grievance Towards Government, Business and the Rich, Edelman (Jan. 22, 2025), https://www.edelman.com/news-awards/2025-edelman-trust-barometer-reveals-high-level-grievance [https://perma.cc/VE2L-FCA6]; Edelman Trust Institute, 2025 Edelman Trust Barometer, https://www.edelman.com/sites/g/files/‌aatuss191/files/2025-01/2025%20Edelman%20Trust%20Barometer_Final.pdf [https://perma.cc/‌5D2M-4MG2]; Claudia Deane, Americans’ Deepening Mistrust of Institutions, Pew (Oct. 17, 2024), https://www.pewtrusts.org/en/trend/archive/fall-2024/americans-deepening-mistrust-of-‌institutions [https://perma.cc/LZN3-7LKX]; Public Trust in Government: 1958–2024, Pew Rsch. Ctr. (June 24, 2024), https://www.pewresearch.org/‌politics/2024/06/24/public-trust-in-government-1958-2024/ [https://perma.cc/JZQ7-WP2P]. ↩︎
73. David Singh Grewal & Jedediah Purdy, Introduction: Law and Neoliberalism, 77 Law & Contemp. Probs. 1, 10-14 (2014); see also Paul Krugman, Introducing This Blog, N.Y. Times (Sept. 18, 2007, 11:45 PM), https://archive.nytimes.com/krugman.blogs.nytimes.com/2007/09/18/‌introducing-this-blog/ [https://perma.cc/R6MR-GPNM] (describing the great compression and subsequent relative economic equality in the roughly thirty-year period following the New Deal and World War II). ↩︎
74. Cf. Maggie Astor, Trump’s Call for ‘Termination’ of Constitution Draws Rebukes, N.Y. Times (Dec. 4, 2022), https://www.nytimes.com/2022/12/04/us/politics/trump-constitution-republicans.‌html [https://perma.cc/G25L-VB6X] (“The explicit suggestion of suspending the Constitution was astonishing even by the standards of Mr. Trump . . . .”); Kim Lane Scheppele, Autocratic Legalism, 85 U. Chi. L. Rev. 545, 546 (2018) (describing the rise, in the context of high levels of social distrust, of a new form of authoritarianism that uses law to undermine democratic constitutionalism). ↩︎