Making Constitutional Memory Claims of Normative Arguments Utilizing a More Expansive Constitutional History

Reva Siegel, Foreword: Democratizing Constitutional Memory, 123 Mich. L. Rev. (forthcoming 2025)  

The Court regularly makes claims on the past—claims that have grown in prominence since conservatives on the Roberts Court invoked “history and tradition” to overrule longstanding case law on religious free exercise, the right to bear arms, and the right to abortion.  The Court claims its historically based approach constrains judges by focusing interpretation on objective and impersonal facts in the past.

To refute that account, this Foreword demonstrates that appeals to the past in constitutional law, whether true, false, or selective, are commonly elements of normative arguments about our identity and obligations as a people that I term “constitutional memory” claims. I examine gaps between constitutional memory and constitutional history to show how claims on the past in law can conceal, rather than constrain, the expression of judicial values—illustrating through a brief consideration of Dobbs v. Jackson Women’s Health Organization, the decision reversing the abortion right.

Analyzing gaps between constitutional memory and constitutional history refutes core premises of the judicial constraint claim. Importantly, it brings into view new interpretive possibilities for “democratizing memory,” which the Foreword concludes by exploring.

Many critics of conservative historicism would spurn historical-based argument altogether in favor of argument from principle. But there are good reasons to combine argument from principle and memory. The point is not to accommodate the powerful. To the contrary: As we appreciate the pervasive gaps between history and memory in constitutional law, we can ask whose voice, experience, and perspective does law represent? Whose is absent? And how might we democratize constitutional memory and represent in law the perspectives of those unjustly denied voice in the making of American law for much of the nation’s history?  In recalling efforts of the disfranchised to speak—whether by petitioning lawmakers or by resisting law—we can expand our accounts of constitutional lawmaking and identify new authorities to guide the application of constitutional principles.

Including these stories can reorient the law today. To take but one example: When we democratize constitutional memory—considering not only the views of lawmakers but of the people—we can see that American understandings of liberty include freedom from coercion in sex, reproduction, and family life.