Claims on the Past in Constitutional Argument over Originalism, Civil War/Reconstruction, and MAGA
Abstract
Excerpted From: Reva B. Siegel, History or Memory?: Claims on the Past in Constitutional Argument over Originalism, Civil War/Reconstruction, and MAGA, 36 Yale Journal of Law & the Humanities 479 (2026) (193 Footnotes) (Full Document)
We are typically requested in the identify of patriotism to overlook the deserves of this fearful battle, and to recollect with equal admiration … those that fought for slavery and those that fought for liberty and justice. I’m no minister of malice … however … might my tongue cleave to the roof of my mouth if I overlook the distinction between the events to that … bloody battle … I could say if this conflict is to be forgotten, I ask in the identify of all issues sacred what shall males bear in mind Frederick Douglass, Tomb of the Unknown Soldier, Arlington National Cemetery (1871)
Since Trump took workplace, the park service–an company charged with preserving American history–has modified how its web site describes key moments from slavery to Jim Crow .
When the Roberts Court invokes historical past to resolve a constitutional dispute, it presents the previous as a site of details freed from values, a impartial floor on which to resolve battle. In United States v. Rahimi , 3 the Court’s most up-to-date Second Amendment resolution, Justice Kavanaugh invoked Justice Scalia’s protection of originalism: “ History establishes a ‘ criterion that is conceptually quite separate from the preferences of the judge himself.” ’ 4 “ A history-based methodology,” Kavanaugh defined, “ imposes a neutral and democratically infused constraint on judicial decision making.” “ The facts of our founding are not partisan,” President Trump’s Advisory 1776 Commission likewise defined. “ They are a matter of history.”
But originalists’ historic details might as a substitute be projections of the interpreters’ expertise and values. In Against Constitutional Originalism: A Historical Critique , 7 historian Jonathan Gienapp attracts on founding-era sources to show that original-public-meaning originalists will not be reasoning from historical past once they assume that the Constitution is “ exclusively written, that its meaning is fixed, and that it is essentially lawlike.” Historians perceive “ the original Constitution” –as originalists do not–because they respect “ a vital truth: the past is a foreign country,” Gienapp observes. Originalism “ is not really about the past, but the present,” “ living constitutionalism by another name.” Many originalists try and deflect historic critique on grounds that they’re doing legislation , 12 however Gienapp counters, originalists’ claims on the previous topic them to the authority of historical past: “ Originalists have made the law about the past …. If originalists would prefer for law to remain largely separate from history, then they shouldn’t have made law a matter of recovering the past as originally understood.”
Claims about the previous in constitutional legislation are sometimes seen as historical past. This Article analyzes claims about the previous in constitutional legislation as integral to normative argument–as each constructive and normative–and thus totally different from historians’ claims about the previous. I nonetheless view it as essential to topic constitutional claims about the previous to historic analysis. We want historical past, sociology, and different disciplines to grasp the many sorts of authority that these claims about the previous exert, and to grasp how constitutional legislation buildings society–matters I show by analyzing claims on Civil War reminiscence, from the period of Lincoln to Trump.
My account aligns me in half with the essential premises of Against Constitutional Originalism . For years I’ve drawn on historical past to research originalism from quite a lot of essential vantage factors, 14 and a lot admire Gienapp’s mission of subjecting originalists’ claims on the founding to systematic historic problem. Constitutional claims on the previous warrant historic interrogation, and will not be, as a rising variety of originalists declare, entitled to immunity from historic analysis as a result of they’re “ legal.”
But simply as legislation can’t declare unique authority over the previous, neither can historical past. It is on this key level that I diverge from Gienapp. Gienapp characterizes positive-normative reasoning about the previous of the variety that pervades originalism and so many different types of constitutional argument as “ “ anachronistic.” When Gienapp makes use of the time period “ anachronistic” to explain constitutional claims about the previous involved with normative questions in the current, he presents historical past’s authority over the previous as main and genuine and constitutional legislation’s as secondary and inauthentic, 17 a “ contrived” “ fiction,” as Gienapp places it. Just as historical past has modes of reasoning about the previous, so too do many types of legislation. Positive-normative reasoning about the previous is a core a part of constitutional argument, with its personal complicated logic. In constitutional disputes, claims on the previous assist the nation discover its means ahead; they don’t seem to be misplaced or a mistake in chronology as the time period “ anachronism” implies. Our nation’s very future as a constitutional democracy relies upon on the authority and credibility of those claims on the previous, sustained throughout generations and over divides. Without these “ anachronisms,” the “ We” of “ We the People” turns into a “ They,” and different identifications and ethics predominate.
I’ve elsewhere referred to as this fusion of constructive and normative claims about the previous in constitutional argument constitutional reminiscence. These claims on the previous categorical causes and relationships rooted in group that collectively endow constitutional legislation with authority, promote solidarity, and reputable domination and empower resistance. To illustrate, the Article samples, in historic context, constitutional arguments interesting to Civil War reminiscence over the final 100 fifty years–returning in its conclusion to originalist accounts of the Reconstruction Amendments.
Americans decoding the Constitution usually invoke the past–whether by way of a “ historical modality” 20 about the founding or by recounting the story of slavery and Brown v. Board , 21 as debates over affirmative motion so usually do. The factual parts of those claims may be assessed traditionally, however they’re embedded in and are integral elements of value-based argument about identification and obligation, about who we’re and what we owe each other. The temporality of those statements about the previous just isn’t historic, however it’s intelligible. As members properly perceive, at stake in this debate over our constitutional previous are questions on residing collectively in the current and future.
We know these constitutional claims on the previous are rooted in normative concern as a result of the query of “ what happened?” solutions the query “ what are we to do? ” –a query additionally usually answered by a debate over the questions “ what kind of a people are we” and “ who has authority to say” ? Such debates can assist legitimate–or discredit–the train of coercive public energy.
A big physique of interdisciplinary and transnational scholarship research the position that “ collective memory” 22 performs in answering value-laden questions on how group identification shapes group. Once we acknowledge the energy of claims on the previous to forge group identification, to underwrite causes for motion, and to reputable social construction outdoors of law–it is less complicated to acknowledge reminiscence’s footprint inside legislation. Paralleling the collective reminiscence utilization, I’ve referred to as the normative, identitarian, future-focused dimensions of claims on the previous in arguments about the Constitution’s which means “ “ constitutional memory” claims. These representations of the previous reputable the train of presidency authority.
The constitutional reminiscence analytic helps us determine the many types of normative attraction in constitutional argument and to grasp the sources of their authority, their energy to influence. Constitutional reminiscence just isn’t reducible to some explicit modality of argument or concept of interpretation–instead, constitutional reminiscence works by way of quite a few types of constitutional argument.
I outline constitutional reminiscence broadly to incorporate all claims about the previous in constitutional argument asserted for the function of building identification or obligation. Studying originalism and history-and-tradition doctrines–which expressly deny that claims on the previous are value-based–led me to understand the many types of normative argument hidden in constitutional claims about the previous, 25 and thus to undertake this purposive or functionalist method to constitutional reminiscence. It appears to me finest suited to identifying–and engaging–the diversified and underrecognized types of normative argument in constitutional legislation inside and outdoors of originalism.
Finally, the research of reminiscence just isn’t a flip from historical past, however requires as a substitute a essential engagement with historical past. Once we start to look at the interaction of constructive and normative argument in debates about the Constitution, we acknowledge how the illustration of the previous can advance value-based argument. The previous could also be represented in phrases which are true, false, or selective –or at increased and decrease ranges of generality . Countering these representations of the previous usually invitations a recent flip to historical past, to appropriate false details, or to produce lacking context or to indicate how depicting the previous at a special stage of generality might help a special final result. Even the flip to historical past may be understood in positive-normative phrases. The flip to historical past might itself be in the service of value-based argument, for instance, to widen the lens and to “ democratize constitutional memory” –to “ represent in law the perspectives of those unjustly denied voice in the making of American law for much of American history.” Constitutional historical past continues to play a vigorous position as an integral a part of a future-focused follow of normative argument.
A primary aim of this Article is to show the centrality of reminiscence in constitutional argument. I’ve come to understand that for a lot of in legislation, “ “ memory” appears like an import from sociology or the humanities, missing the endorsement of originalism and having nothing to do with doctrine or the acquainted “ modalities” 28 of constitutional interpretation. Legal professionals are likely to assume the authority of those skilled modes of argument. In truth, constitutional reminiscence helps clarify how originalism, doctrine, and the modalities come to have persuasive authority for Americans inside and, simply as importantly, outdoors courts. But why analyze authority in a language legislation doesn’t acknowledge? I start in Part I by displaying that “ memory” was a part of American constitutional vernacular lengthy earlier than educational research of “ “ collective memory” (or “ original public meaning” ) started. In the months earlier than the Civil War, in one among the extra well-known moments of constitutional argument outdoors the courts, President Lincoln’s first Inaugural Address invoked the “ mystic chords of memory” 30 to remind Americans that they had been one nation certain by way of ties of Revolution and Constitution, searching for by way of this attraction to reminiscence to avert resort to bloodshed. In the 1871 quote opening this Article, Frederick Douglass depicted reminiscence as a locus of battle –as fierce as the current conflict and simply as consequential in defining the constitutional order. Douglass appreciated that claims on the previous could make beliefs, accidents, and obligations extra compelling as a result of they’re “ ours” –and that the query of what’s “ ours” is perpetually in contest and riven with inequality, as Douglass’s astonishing, politically clear-eyed, deeply raced and heartfelt dedication of the Freedmen’s Memorial Monument to Abraham Lincoln on April 14, 1876, so vividly illustrates. Through reminiscence, We the People and their Constitution are co-constitutive.
A second aim of the Article is to indicate that even when Americans will not be using the idiom of reminiscence, they make reminiscence claims on the previous that construction normative constitutional argument and give defining form to American constitutional legislation. To illustrate: Why did Reconstruction require a “ do-over,” producing what is typically termed the Second Reconstruction? Nothing in the Constitution’s textual content explains this function of our legislation. The Article considers how reminiscence of the Civil War served as a power for nationwide division and for nationwide reconciliation, supplying frames for race relations outdoors and inside legislation. I take into account the path from the War’s finish to the Second Reconstruction by analyzing Confederate lost-cause reminiscence because it advanced over time, in addition to the counter-memory work of Americans searching for racial emancipation; and I shut by suggesting how the Trump administration is reviving strands of lost-cause reasoning which will undo the work of the Second Reconstruction.
A 3rd aim of the Article is as an example how Americans have employed constitutional reminiscence in service of critique and reconstruction. This historical past demonstrates that reminiscence has legitimated essential options of American constitutional legislation; that reminiscence permits debates over the Constitution outdoors and inside the courts; and that, like so many options of our constitutional order, reminiscence is contested, a useful resource for the highly effective to dominate the powerless–and by way of counter-memory, for the powerless to problem the highly effective.
We see in this historical past causes that reminiscence matters–many of that are Lincoln’s causes . As Lincoln understood, residing collectively below legislation requires greater than information. It is a dedication that shapes and is formed by values, relationships, and emotions. The will to settle our disputes by way of legislation, not war–as “ friends, not enemies,” as Lincoln mentioned in his First Inaugural Address 34 –requires a perception in We the People robust sufficient that Americans torn by fierce disagreement acknowledge one another as a We reasonably than “ the enemy within.” As Lincoln understood, “ the mystic chords of memory” 36 undergird our constitutional legislation, which much more generally turns to narratives of a shared previous, than of consent, for its authority. Memory can amplify the energy of our value-based claims on one another–as Douglass and King understood in difficult white America’s reminiscence of the Civil War. This was not solely a matter of the details, of getting the historical past proper, however of a battle throughout generations in search of a extra democratic We, and what Lincoln referred to as a “ just and lasting peace.”
The Article begins in Part I by introducing reminiscence as a part of America’s constitutional vernacular in Lincoln’s first and second inaugural addresses. Part II examines reminiscence claims about the Civil War outdoors the legislation, and Part III considers reminiscence claims inside the legislation. In this, the physique of the Article, I hint lost-cause reminiscence and counter-memory challenges to it, and look at the gender of slavery and freedom, transferring between constitutional reminiscence and constitutional historical past. Part IV returns to questions of originalism on which the Article opened. I present constitutional reminiscence claims at work in Justice Thomas’s opinion in McDonald v. Chicago 38 urging the Court to include the Second Amendment towards the States by way of the Privileges or Immunities Clause of the Fourteenth Amendment and in Justice Alito’s opinion in Dobbs v. Jackson Women’s Health Organization decoding the Fourteenth Amendment’s liberty assure to require Roe ’s overruling. I shut by illustrating how the constitutional reminiscence claims of McDonald and Dobbs diverge from constitutional historical past.
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This Article has explored parallels in the ways in which societies remember–“ collective memory” –and in the ways in which legislation remembers, “ “ constitutional memory.” I’ve proven that in the American constitutional custom, making claims about the previous is a core follow of argument, that constructive claims about the previous usually categorical normative claims about who we’re and what we owe each other.
The originalism-identified Justices of the Roberts Court declare in any other case: that they’re reasoning from “ history,” not reminiscence, by which they imply from an goal, factual, and value-free standpoint, 141 citing originalist authority of the Reagan period.
In prior work I’ve shown–from many vantage points–that the history-and-tradition choices of the Roberts Court are reminiscence claims: the Justices array details about the previous to advance value-based expressions of residing constitutionalism of the very variety the Justices declare, as a matter of jurisprudential concept, to sentence. As I put it in Memory Games , “ originalist judges ventriloquize historical sources … history that expresses judicial preferences as the nation’s traditions.” The judicial follow of disowning normative argument and imputing accountability for choices to previous authorities inflicts distinctive democratic harms. When the Justices attribute their choices to the framers or others in the deep past–deflecting consideration from the interpretive selections that allow the Justices to characterize the previous as governing–they mislead the public and deprive Americans of the alternative to carry the Court itself accountable for the choices it makes.
To conclude, I’ll illustrate this dynamic in a Reconstruction-themed opinion of Justice Thomas, which illustrates, fairly vividly, one among many ways in which originalist arguments can embed normative claims inside what seem like constructive claims about the previous. I’m particularly in this instance as a result of it poses provocative questions on the boundaries between the constructive and normative claims in originalist and nonoriginalist types of interpretation.
In McDonald v. City of Chicago , 146 the Court held that the Second Amendment proper of self-defense it had acknowledged two years earlier in District of Columbia v. Heller 147 was integrated towards the states below the Fourteenth Amendment. Justice Alito wrote an opinion for a plurality (together with Justice Scalia) that integrated Heller ’s proper to bear arms below the Due Process Clause, 148 however Justice Thomas wrote individually to name for incorporation below the Fourteenth Amendment’s Privileges or Immunities Clause on grounds “ more faithful to the Fourteenth Amendment’s text and history.” Speaking as an originalist, he asserted that the Due Process Clause “ guarantees only ‘ process,” D’ and disparaged incorporation doctrine and basic rights legislation as a “ particularly dangerous” “ legal fiction.” Then, in a prolonged opinion stuffed with contestable arguments and assumptions, he (1) appeared to the congressional file as probative of the public’s doubtless understanding of the Amendment’s textual content at the time of ratification 151 and (2) picked his means by way of rival accounts of the Privileges or Immunities Clause with dramatically divergent implications for construction and rights.
Justice Thomas’s opinion “ explain[ed] why this Clause in particular protects against more than just state discrimination, and in fact establishes a minimum baseline of rights for all American citizens,” 153 and then argued that “ the Privileges or Immunities Clause enforces at least those fundamental rights enumerated in the Constitution against the States, including the Second Amendment right to keep and bear arms.” He concluded by quoting Frederick Douglass in help of this argument:
[I]t was understood that liberty can be assured little safety if § 1 left every State to determine which privileges or immunities of United States citizenship it might shield. As Frederick Douglass defined earlier than § 1’s adoption, “ the Legislatures of the South can take from him the right to keep and bear arms, as they can–they would not allow a negro to walk with a cane where I came from, they would not allow five of them to assemble together.” In What New Skin Will the Old Snake Come Forth? An Address Delivered in New York, New York, on May 10, 1865, reprinted in 4 The Frederick Douglass Papers 79, 83-84 (J. Blassingame & J. McKivigan eds. 1991) (footnote omitted). “ Notwithstanding the provision in the Constitution of the United States that the right to keep and bear arms shall not be abridged,” Douglass defined that “ the black man has never had the right either to keep or bear arms.” Id. , at 84. Absent a constitutional modification to implement that proper towards the States, he insisted that “ the work of the Abolitionists [wa]s not finished.”
Thomas’s use of Frederick Douglass’s speech to show that the Privileges or Immunities Clause incorporates the Second Amendment provokes instant questions on Thomas’s originalist methodology. First, how would a speech on May 10, 1865–before ratification of the Thirteenth Amendment– make clear the which means of the Fourteenth Amendment, which hadn’t but been conceived or drafted? Second, what’s Douglass’s authority to talk to this query, when he’s neither talking as drafter nor ratifier? Third, given the very historical past Douglass recounts, isn’t it extra doubtless that Douglass is talking for unrepresented or underrepresented parts of the public, reasonably than those that ratified the Amendment?
Questions of this sort prompted a return to the Douglass supply quoted, which revealed that Douglass was not talking about the query for which Justice Thomas quoted him. Read the speech your self. Douglass’s speech has been artfully edited and shorn of context that appears vital to grasp its which means below any interpretive method–so a lot in order that it appears honest to characterize Justice Thomas’s studying as, in his phrases , a “ legal fiction.” Yes, Douglass did categorical help for Black males having the proper to bear arms that whites do. But Douglass didn’t declare that “ [a]bsent a constitutional amendment to enforce that right against the states … ‘ the work of the Abolitionists [wa]s not finished.” ’
In 1865, Douglass was arguing earlier than the American Anti- Slavery Society that, however the impending ratification of the Thirteenth Amendment, the Anti- Slavery Society mustn’t disband as a result of the Thirteenth Amendment was not enough to safe liberty for the emancipated slaves –that no constitutional provision may safe liberty except Black males had the vote : “ Slavery is not abolished until the black man has the ballot.” Douglass urged the Abolitionists “ to extend the franchise to the negro ,” figuring the franchise as the “ trumpet of freedom.” Without political energy, Blacks could possibly be denied entry to courts, could possibly be disarmed, and can be diminished “ to a condition similar to slavery ,” Douglass warned. “ They would not call it slavery , but some other name. Slavery has been fruitful in giving itself names,” and “ you and I and all of us had better wait and see … in what new skin this old snake will come forth next (loud applause).” Douglass was foretelling the Black Codes and the way forward for Reconstruction.
To put the level politely, there’s a appreciable hole between constitutional history–the context, viewers, substance, and motion focus 161 of the Douglass speech–and constitutional reminiscence, the originalist declare for which Justice Thomas cherry-picked quotes from the Douglass speech.
Justice Thomas’s attraction to Douglass in McDonald illustrates, but once more, that originalism performs “ memory games” 163 –and is normative exactly when it claims to be constructive. In McDonald , Frederick Douglass is Justice Thomas’s avatar, searching for for Black males the proper to self-defense reasonably than the proper to vote, and offering one more illustration of the argument of Memory Games : that “ originalist judges ventriloquize historical sources.”
Thomas’s opinion in McDonald fascinates me as a result of a essential studying generates wealthy questions on originalist and extra standard modes of constitutional interpretation at the identical time. When I learn the speech from which Justice Thomas selectively quoted, I believed: the place else in United States Reports do freedmen communicate, a lot much less to equate emancipation with enfranchisement? A typical view in the instances and commentary is that the Thirteenth and Fourteenth Amendment endowed the freedman with equal civil rights–not equality in political and social rights, together with the proper to vote.
In quick, Justice Thomas launched into the pages of the United States Reports the uncommon instance of a Justice (1) consulting a disfranchised particular person for the authentic which means of a constitutional provision, and (2) in the course of, inadvertently provided proof of a Black abolitionist advocating a extra expansive understanding of citizenship than white Republicans advocated in debates over the Thirteenth and Fourteenth Amendments. Since writing The Politics of Constitutional Memory 168 on the centennial of the Nineteenth Amendment’s ratification, 169 I’ve proven that the Court’s instances neither identify nor quote the disfranchised, erasing their voices from legislation’s previous, whereas Justice Thomas, in a racially self-conscious means, breaches conference to cite Frederick Douglass with some regularity.
In quick, Justice Thomas’s attraction to Frederick Douglass is essential as a breach of conference that spotlights the workings of reminiscence in originalism and nonoriginalism as properly. In recounting the previous in legislation we make use of quite a few conventions, for instance, reporting lawmaking and adjudication in extremely stylized ways in which accord with then-prevailing authorized procedures however would by no means suffice as an account of “ what happened” from the standpoint of different disciplines. These conventions for describing the previous in legislation entrench the legacies of lost-cause and separate-spheres values, and naturalize conventional standing relations in methods a constitutional interpreter might not discover or intend.
What if we extra systematically drew on constitutional historical past to disrupt and enrich constitutional memory–by incorporating into our understanding of the Reconstruction Amendments the views of Americans , like Frederick Douglass and Victoria Woodhull, who had been denied a voice in governance for causes that right this moment we view as unconstitutional? At this level it appears much less arbitrary to incorporate than systematically to exclude. At the time of the Fourteenth Amendment’s drafting and ratification, Douglass and Woodhull (and the freedom actions they led) seen the franchise as a privilege or immunity of citizenship below the Amendment, 173 invoking no much less an authority than Corfield v. Coryell , which acknowledged the proper to vote as a privilege or immunity of citizenship. It isn’t a surprise that the disfranchised would view the franchise–equal political rights–as the core aspect of citizenship.
Originalists can incorporate this proof. Professor James Fox urges inclusion of Douglass and Woodhull’s views as related “ counter publics” that right this moment can and ought to inform an originalist’s understanding of the Fourteenth Amendment’s authentic public which means. Originalist David Upham asks why the views of biracial state constitutional conventions held in former Confederate states throughout Congressional Reconstruction will not be frequently thought of in decoding the which means of the Fourteenth Amendment, although the conventions’ work was contemporaneous with its ratification. The conventions enabled the speech of Americans whom Southern whites violently excluded from politics throughout slavery and would once more after Reconstruction. “ The Reconstruction acts … created a new electorate by enfranchising former slaves and disfranchising many whites,” Paul Herron explains. “ [T]hose selecting delegates in 1867 were a different ‘ people’ than had ever done so before.” Even although the conference proceedings categorical views of Americans who had been unrepresented in authorities deliberations outdoors the South in addition to in it, 179 lost-cause denigration of the conventions as “ barbaric” assaults on the sovereignty of Southern states seems nonetheless to stop their recognition as sources which may illuminate the debates over the Fourteenth Amendment’s which means.
But if standard methods of representing the previous in legislation perpetuate standing exclusions we declare to repudiate, we are able to break with conference. We have seen that girls and household have been completely eradicated from the constitutional reminiscence of Reconstruction–a silence that genders the liberty the Constitution protects. That very silence helps to reputable Roe ’s reversal in Dobbs , and rather more. Dobbs quoted Lincoln: “ ‘ We all declare for Liberty; but in using the same word we do not all mean the same thing.” ’ 181 Then, to make clear liberty’s which means, Dobbs turned to an account of the nation’s “ history and tradition” that wholly excluded the voice and expertise of the enslaved and the disfranchised.
The Court may have thought of a wider array of sources in decoding the liberty assure, as Professor Peggy Cooper Davis has lengthy urged. Since Dobbs , she and Professor Michele Goodwin have appeared to the diaries of the enslaved , together with Sojourner Truth and Harriet Jacobs. What if a courtroom thought of the diary of Elizabeth Keckley, a Black girl born into slavery who would work for Mary Todd Lincoln and write of the terror of household separation, and of years of rape and the being pregnant that adopted. As Frederick Douglass’s voice in McDonald demonstrates, the voices of Sojourner Truth, Harriet Jacobs, and Elizabeth Keckley may someday information America, making vivid liberty’s which means in the pages of United States Reports .
Claims for sexual, reproductive, and household freedom continued from technology to technology in ratification’s wake. Yet right this moment these claims are disparaged by males as not-law, not entitled to the safety of the Amendment that property and contract are. Constitutional interpreters inside and outdoors courts can, and ought to, take into account the views of lawmakers and the folks they ruled, together with those that couldn’t form legislation after centuries of exclusion from voting, workplace, and judging. “ [B]y expanding the evidence of tradition we examine, we may arrive at fundamentally different understandings of freedom’s meaning.”
Nicholas deB. Katzenbach Professor of Law, Yale Law School.