This Essay takes as its jumping-off point Jack Balkin’s claim that judicial decisions both rely on constitutional memory and produce constitutional memory. It discusses the efforts of politicians and judges in the United States, from the moment of emancipation to the present, to erase the memory of slavery from the history of the Constitution. By putting slavery in the deep past, and portraying freedom as a gift from white people to Black people, opponents of Black rights promoted a nationwide retreat from the promise of citizenship and equality in the Reconstruction Amendments. Likewise, today’s Supreme Court majority has adopted a version of history promulgated by radical movement conservatives in which slavery ended with finality in 1865, the debt for slavery was paid with the Civil War, and slavery is decoupled from race so that racial inequality no longer appears to be tied to the legacy of slavery.
Issue 7 2025 Essay originalism;