Constitutional Memories

JB

I have posted a new essay, Constitutional Memories, on SSRN. Here is the abstract.

Many arguments in constitutional law invoke collective memory. Collective memory is what a group—for example, a religion, a profession, a people, or a nation— remembers and forgets about its past.  This combination of remembering and forgetting helps constitute the group’s identity and structures its values and its commitments. Precisely because memory is selective, it may or may not correspond to the best account of historical facts.

The use of memory in constitutional argument is constitutional memory. It shapes people’s views about what the law means and why people have authority. Lawyers and judges continually invoke and construct memory; judicial decisions both rely on constitutional memory and produce constitutional memory.

What is remembered and what is erased has powerful normative effects. It shapes our understanding of who we are and how things came to be; what is traditional and what is an innovation; who has committed wrongs and who has been wronged; what we owe to others and what they owe to us. What is erased from memory, by contrast, can make no claims on us.

Many of the most important forms of constitutional interpretation— arguments from precedent, arguments from tradition, and arguments from original meaning or understanding—involve an mixture of memory and erasure. They emphasize certain elements of the past while effacing others. Yet the selectivity and erasure of constitutional memory can have ideological effects, and can bestow on constitutional claims a legitimacy that they do not always deserve.

The scope of constitutional memory matters to legitimacy because many features of constitutional legitimacy depend, whether directly or indirectly, on implicit notions of societal consensus, majority opinion, and the consent of the governed.  But if the consensus is not real, if the majority is artificially constructed, and if the consent of the governed is not genuine, this undermines assumptions about legitimacy.

At stake in constitutional memory is which historical figures and movements will count as makers of constitutional meaning for the present. If the memory of the adoption of the Constitution and its amendments features only a small group of white men as the central actors, the American constitutional tradition belongs to them and it is their views that matter. Women and racial minorities have constitutional rights only because these white men allowed them to have them. 

This is a false portrait of the country’s history. When we engage in constitutional construction therefore, we should embrace an expansive conception of collective constitutional memory, including the views and experiences of people left out of formal constitution-making, as well as the claims of social and political movements that have shaped our constitutional tradition. These can provide both positive and negative examples for the present.

Not all of the lessons of constitutional memory are positive. Not everyone in the past was heroic, and even people and groups that we celebrate today had serious flaws and failings. Some of the lessons of constitutional memory are deeply ambivalent. But all can be grist for the mill of constitutional construction. When we implement and apply the Constitution in our own time, many different groups and many different people can be makers of constitutional meaning. What matters is what their ideas and experiences mean for the present, and whether they can serve as positive or negative examples for us today.