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 sometimes asked in the name of patriotism to forget the merits of this fearful struggle, and to remember with equal admiration ... those who fought for slavery and those who fought for liberty and justice. I am no minister of malice ... but ... may my tongue cleave to the roof of my mouth if I forget the difference between the parties to that ... bloody conflict ... I may say if this war is to be forgotten, I ask in the name of all things sacred what shall men remember Frederick Douglass, Tomb of the Unknown Soldier, Arlington National Cemetery (1871)

Since Trump took office, the park service--an agency charged with preserving American history--has changed how its website describes key moments from slavery to Jim Crow .

When the Roberts Court invokes history to resolve a constitutional dispute, it presents the past as a domain of facts free of values, a neutral ground on which to resolve conflict. In United States v. Rahimi , 3 the Court’s most recent Second Amendment decision, Justice Kavanaugh invoked Justice Scalia’s defense of originalism: “ History establishes a ' criterion that is conceptually quite separate from the preferences of the judge himself.” ’ 4 “ A history-based methodology,” Kavanaugh explained, “ 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 explained. “ They are a matter of history.”

But originalists’ historical facts may instead be projections of the interpreters’ experience and values. In Against Constitutional Originalism: A Historical Critique , 7 historian Jonathan Gienapp draws on founding-era sources to demonstrate that original-public-meaning originalists are not reasoning from history when they assume that the Constitution is “ exclusively written, that its meaning is fixed, and that it is essentially lawlike.” Historians understand “ 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 attempt to deflect historical critique on grounds that they are doing law , 12 but Gienapp counters, originalists’ claims on the past subject them to the authority of history: “ 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 past in constitutional law are often viewed as history. This Article analyzes claims about the past in constitutional law as integral to normative argument--as both positive and normative--and thus different from historians’ claims about the past. I nonetheless view it as crucial to subject constitutional claims about the past to historical evaluation. We need history, sociology, and other disciplines to understand the many kinds of authority that these claims about the past exert, and to understand how constitutional law structures society--matters I demonstrate by analyzing claims on Civil War memory, from the era of Lincoln to Trump.

My account aligns me in part with the critical premises of Against Constitutional Originalism . For years I have drawn on history to analyze originalism from a variety of critical vantage points, 14 and much admire Gienapp’s project of subjecting originalists’ claims on the founding to systematic historical challenge. Constitutional claims on the past warrant historical interrogation, and are not, as a growing number of originalists claim, entitled to immunity from historical evaluation because they are “ legal.”

But just as law cannot claim exclusive authority over the past, neither can history. It is on this key point that I diverge from Gienapp. Gienapp characterizes positive-normative reasoning about the past of the kind that pervades originalism and so many other forms of constitutional argument as “ “ anachronistic.” When Gienapp uses the term “ anachronistic” to describe constitutional claims about the past concerned with normative questions in the present, he presents history’s authority over the past as primary and authentic and constitutional law’s as secondary and inauthentic, 17 a “ contrived” “ fiction,” as Gienapp puts it. Just as history has modes of reasoning about the past, so too do many forms of law. Positive-normative reasoning about the past is a core part of constitutional argument, with its own complex logic. In constitutional disputes, claims on the past help the nation find its way forward; they are not out of place or a mistake in chronology as the term “ anachronism” implies. Our nation’s very future as a constitutional democracy depends on the authority and credibility of these claims on the past, sustained across generations and over divides. Without these “ anachronisms,” the “ We” of “ We the People” becomes a “ They,” and other identifications and ethics predominate.

I have elsewhere called this fusion of positive and normative claims about the past in constitutional argument constitutional memory. These claims on the past express reasons and relationships rooted in community that together endow constitutional law with authority, promote solidarity, and legitimate domination and empower resistance. To illustrate, the Article samples, in historical context, constitutional arguments appealing to Civil War memory over the last one hundred fifty years--returning in its conclusion to originalist accounts of the Reconstruction Amendments.

Americans interpreting the Constitution often invoke the past--whether through a “ historical modality” 20 about the founding or by recounting the story of slavery and Brown v. Board , 21 as debates over affirmative action so often do. The factual elements of these claims can be assessed historically, but they are embedded in and are integral parts of value-based argument about identity and obligation, about who we are and what we owe one another. The temporality of these statements about the past is not historical, but it is intelligible. As participants well understand, at stake in this debate over our constitutional past are questions about living together in the present and future.

We know these constitutional claims on the past are rooted in normative concern because the question of “ what happened?” answers the question “ what are we to do? ” --a question also often answered by a debate over the questions “ what kind of a people are we” and “ who has authority to say” ? Such debates can help legitimate--or discredit--the exercise of coercive public power.

A large body of interdisciplinary and transnational scholarship studies the role that “ collective memory” 22 plays in answering value-laden questions about how group identity shapes community. Once we recognize the power of claims on the past to forge group identity, to underwrite reasons for action, and to legitimate social structure outside of law--it is easier to recognize memory’s footprint inside of law. Paralleling the collective memory usage, I have called the normative, identitarian, future-focused dimensions of claims on the past in arguments about the Constitution’s meaning “ “ constitutional memory” claims. These representations of the past legitimate the exercise of government authority.

The constitutional memory analytic helps us identify the many forms of normative appeal in constitutional argument and to understand the sources of their authority, their power to persuade. Constitutional memory is not reducible to some particular modality of argument or theory of interpretation--instead, constitutional memory works through numerous forms of constitutional argument.

I define constitutional memory broadly to include all claims about the past in constitutional argument asserted for the purpose of establishing identity or obligation. Studying originalism and history-and-tradition doctrines--which expressly deny that claims on the past are value-based--led me to appreciate the many forms of normative argument hidden in constitutional claims about the past, 25 and thus to adopt this purposive or functionalist approach to constitutional memory. It seems to me best suited to identifying--and engaging--the varied and underrecognized forms of normative argument in constitutional law inside and outside of originalism.

Finally, the study of memory is not a turn from history, but requires instead a critical engagement with history. Once we begin to examine the interplay of positive and normative argument in debates about the Constitution, we recognize how the representation of the past can advance value-based argument. The past may be represented in terms that are true, false, or selective --or at higher and lower levels of generality . Countering these representations of the past often invites a fresh turn to history, to correct false facts, or to supply missing context or to show how depicting the past at a different level of generality may support a different outcome. Even the turn to history can be understood in positive-normative terms. The turn to history may itself be in the service of value-based argument, for example, 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 history continues to play a lively role as an integral part of a future-focused practice of normative argument.

A first goal of this Article is to demonstrate the centrality of memory in constitutional argument. I have come to appreciate that for many in law, “ “ memory” sounds like an import from sociology or the humanities, lacking the endorsement of originalism and having nothing to do with doctrine or the familiar “ modalities” 28 of constitutional interpretation. Legal professionals tend to assume the authority of these professional modes of argument. In fact, constitutional memory helps explain how originalism, doctrine, and the modalities come to have persuasive authority for Americans inside and, just as importantly, outside courts. But why analyze authority in a language law does not recognize? I begin in Part I by showing that “ memory” was part of American constitutional vernacular long before academic study of “ “ collective memory” (or “ original public meaning” ) began. In the months before the Civil War, in one of the more famous moments of constitutional argument outside the courts, President Lincoln’s first Inaugural Address invoked the “ mystic chords of memory” 30 to remind Americans that they were one nation bound through ties of Revolution and Constitution, seeking through this appeal to memory to avert resort to bloodshed. In the 1871 quote opening this Article, Frederick Douglass depicted memory as a locus of struggle --as fierce as the recent war and just as consequential in defining the constitutional order. Douglass appreciated that claims on the past can make ideals, injuries, and obligations more compelling because they are “ ours” --and that the question of what is “ 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 memory, We the People and their Constitution are co-constitutive.

A second goal of the Article is to show that even when Americans are not employing the idiom of memory, they make memory claims on the past that structure normative constitutional argument and give defining shape to American constitutional law. To illustrate: Why did Reconstruction require a “ do-over,” producing what is sometimes termed the Second Reconstruction? Nothing in the Constitution’s text explains this feature of our law. The Article considers how memory of the Civil War served as a force for national division and for national reconciliation, supplying frames for race relations outside and inside of law. I consider the path from the War’s end to the Second Reconstruction by examining Confederate lost-cause memory as it evolved over time, as well as the counter-memory work of Americans seeking racial emancipation; and I close by suggesting how the Trump administration is reviving strands of lost-cause reasoning that may undo the work of the Second Reconstruction.

A third goal of the Article is to illustrate how Americans have employed constitutional memory in service of critique and reconstruction. This history demonstrates that memory has legitimated important features of American constitutional law; that memory enables debates over the Constitution outside and inside the courts; and that, like so many features of our constitutional order, memory is contested, a resource for the powerful to dominate the powerless--and through counter-memory, for the powerless to challenge the powerful.

We see in this history reasons that memory matters--many of which are Lincoln’s reasons . As Lincoln understood, living together under law requires more than knowledge. It is a commitment that shapes and is shaped by values, relationships, and feelings. The will to settle our disputes through law, not war--as “ friends, not enemies,” as Lincoln said in his First Inaugural Address 34 --requires a belief in We the People strong enough that Americans torn by fierce disagreement recognize each other as a We rather than “ the enemy within.” As Lincoln understood, “ the mystic chords of memory” 36 undergird our constitutional law, which far more commonly turns to narratives of a shared past, than of consent, for its authority. Memory can amplify the power of our value-based claims on one another--as Douglass and King understood in challenging white America’s memory of the Civil War. This was not solely a matter of the facts, of getting the history right, but of a struggle across generations in search of a more democratic We, and what Lincoln called a “ just and lasting peace.”

The Article begins in Part I by introducing memory as part of America’s constitutional vernacular in Lincoln’s first and second inaugural addresses. Part II examines memory claims about the Civil War outside the law, and Part III considers memory claims inside the law. In this, the body of the Article, I trace lost-cause memory and counter-memory challenges to it, and examine the gender of slavery and freedom, moving between constitutional memory and constitutional history. Part IV returns to questions of originalism on which the Article opened. I show constitutional memory claims at work in Justice Thomas’s opinion in McDonald v. Chicago 38 urging the Court to incorporate the Second Amendment against the States through the Privileges or Immunities Clause of the Fourteenth Amendment and in Justice Alito’s opinion in Dobbs v. Jackson Women’s Health Organization interpreting the Fourteenth Amendment’s liberty guarantee to require Roe ’s overruling. I close by illustrating how the constitutional memory claims of McDonald and Dobbs diverge from constitutional history.

[ . . . ]

This Article has explored parallels in the ways that societies remember--“ collective memory” --and in the ways that law remembers, “ “ constitutional memory.” I have shown that in the American constitutional tradition, making claims about the past is a core practice of argument, that positive claims about the past often express normative claims about who we are and what we owe one another.

The originalism-identified Justices of the Roberts Court claim otherwise: that they are reasoning from “ history,” not memory, by which they mean from an objective, factual, and value-free standpoint, 141 citing originalist authority of the Reagan era.

In prior work I have shown--from many vantage points--that the history-and-tradition decisions of the Roberts Court are memory claims: the Justices array facts about the past to advance value-based expressions of living constitutionalism of the very kind the Justices claim, as a matter of jurisprudential theory, to condemn. As I put it in Memory Games , “ originalist judges ventriloquize historical sources ... history that expresses judicial preferences as the nation’s traditions.” The judicial practice of disowning normative argument and imputing responsibility for decisions to past authorities inflicts distinctive democratic harms. When the Justices attribute their decisions to the framers or others in the deep past--deflecting attention from the interpretive choices that enable the Justices to represent the past as governing--they mislead the public and deprive Americans of the opportunity to hold the Court itself accountable for the decisions it makes.

To conclude, I will illustrate this dynamic in a Reconstruction-themed opinion of Justice Thomas, which illustrates, quite vividly, one of many ways that originalist arguments can embed normative claims inside of what appear to be positive claims about the past. I am especially interested in this example because it poses provocative questions about the boundaries between the positive and normative claims in originalist and nonoriginalist forms of interpretation.

In McDonald v. City of Chicago , 146 the Court held that the Second Amendment right of self-defense it had recognized two years earlier in District of Columbia v. Heller 147 was incorporated against the states under the Fourteenth Amendment. Justice Alito wrote an opinion for a plurality (including Justice Scalia) that incorporated Heller ’s right to bear arms under the Due Process Clause, 148 but Justice Thomas wrote separately to call for incorporation under 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 fundamental rights law as a “ particularly dangerous” “ legal fiction.” Then, in a lengthy opinion full of contestable arguments and assumptions, he (1) looked to the congressional record as probative of the public’s likely understanding of the Amendment’s text at the time of ratification 151 and (2) picked his way through rival accounts of the Privileges or Immunities Clause with dramatically divergent implications for structure 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 support of this argument:

[I]t was understood that liberty would be assured little protection if § 1 left each State to decide which privileges or immunities of United States citizenship it would protect. As Frederick Douglass explained before § 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 explained that “ the black man has never had the right either to keep or bear arms.” Id. , at 84. Absent a constitutional amendment to enforce that right against the States, he insisted that “ the work of the Abolitionists [wa]s not finished.”

Thomas’s use of Frederick Douglass’s speech to demonstrate that the Privileges or Immunities Clause incorporates the Second Amendment provokes immediate questions about Thomas’s originalist method. First, how would a speech on May 10, 1865--before ratification of the Thirteenth Amendment-- clarify the meaning of the Fourteenth Amendment, which hadn’t yet been conceived or drafted? Second, what is Douglass’s authority to speak to this question, when he is neither speaking as drafter nor ratifier? Third, given the very history Douglass recounts, isn’t it more likely that Douglass is speaking for unrepresented or underrepresented elements of the public, rather than those who ratified the Amendment?

Questions of this kind prompted a return to the Douglass source quoted, which revealed that Douglass was not speaking about the question for which Justice Thomas quoted him. Read the speech yourself. Douglass’s speech has been artfully edited and shorn of context that seems necessary to understand its meaning under any interpretive method--so much so that it seems fair to characterize Justice Thomas’s reading as, in his words , a “ legal fiction.” Yes, Douglass did express support for Black men having the right to bear arms that whites do. But Douglass did not claim 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 before the American Anti- Slavery Society that, notwithstanding the impending ratification of the Thirteenth Amendment, the Anti- Slavery Society should not disband because the Thirteenth Amendment was not sufficient to secure liberty for the emancipated slaves --that no constitutional provision could secure liberty unless Black men 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 power, Blacks could be denied access to courts, could be disarmed, and would be reduced “ 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 future of Reconstruction.

To put the point politely, there is a considerable gap between constitutional history--the context, audience, substance, and movement focus 161 of the Douglass speech--and constitutional memory, the originalist claim for which Justice Thomas cherry-picked quotes from the Douglass speech.

Justice Thomas’s appeal to Douglass in McDonald illustrates, yet again, that originalism plays “ memory games” 163 --and is normative precisely when it claims to be positive. In McDonald , Frederick Douglass is Justice Thomas’s avatar, seeking for Black men the right to self-defense rather than the right to vote, and providing yet another illustration of the argument of Memory Games : that “ originalist judges ventriloquize historical sources.”

Thomas’s opinion in McDonald fascinates me because a critical reading generates rich questions about originalist and more conventional modes of constitutional interpretation at the same time. When I read the speech from which Justice Thomas selectively quoted, I thought: where else in United States Reports do freedmen speak, much less to equate emancipation with enfranchisement? A standard view in the cases and commentary is that the Thirteenth and Fourteenth Amendment endowed the freedman with equal civil rights--not equality in political and social rights, including the right to vote.

In short, Justice Thomas introduced into the pages of the United States Reports the rare example of a Justice (1) consulting a disfranchised person for the original meaning of a constitutional provision, and (2) in the process, inadvertently offered evidence of a Black abolitionist advocating a more 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 have shown that the Court’s cases neither name nor quote the disfranchised, erasing their voices from law’s past, while Justice Thomas, in a racially self-conscious way, breaches convention to quote Frederick Douglass with some regularity.

In short, Justice Thomas’s appeal to Frederick Douglass is important as a breach of convention that spotlights the workings of memory in originalism and nonoriginalism as well. In recounting the past in law we employ numerous conventions, for example, reporting lawmaking and adjudication in highly stylized ways that accord with then-prevailing legal procedures but would never suffice as an account of “ what happened” from the standpoint of other disciplines. These conventions for describing the past in law entrench the legacies of lost-cause and separate-spheres values, and naturalize traditional status relations in ways a constitutional interpreter may not notice or intend.

What if we more systematically drew on constitutional history 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 were denied a voice in governance for reasons that today we view as unconstitutional? At this point it seems less arbitrary to include than systematically to exclude. At the time of the Fourteenth Amendment’s drafting and ratification, Douglass and Woodhull (and the freedom movements they led) viewed the franchise as a privilege or immunity of citizenship under the Amendment, 173 invoking no less an authority than Corfield v. Coryell , which recognized the right to vote as a privilege or immunity of citizenship. It is not surprising that the disfranchised would view the franchise--equal political rights--as the core element of citizenship.

Originalists can incorporate this evidence. Professor James Fox urges inclusion of Douglass and Woodhull’s views as relevant “ counter publics” that today can and should inform an originalist’s understanding of the Fourteenth Amendment’s original public meaning. Originalist David Upham asks why the views of biracial state constitutional conventions held in former Confederate states during Congressional Reconstruction are not regularly considered in interpreting the meaning of the Fourteenth Amendment, even though the conventions’ work was contemporaneous with its ratification. The conventions enabled the speech of Americans whom Southern whites violently excluded from politics during slavery and would again 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 though the convention proceedings express perspectives of Americans who were unrepresented in government deliberations outside the South as well as in it, 179 lost-cause denigration of the conventions as “ barbaric” assaults on the sovereignty of Southern states appears still to prevent their recognition as sources that might illuminate the debates over the Fourteenth Amendment’s meaning.

But if conventional ways of representing the past in law perpetuate status exclusions we claim to repudiate, we can break with convention. We have seen that women and family have been utterly eradicated from the constitutional memory of Reconstruction--a silence that genders the liberty the Constitution protects. That very silence helps to legitimate Roe ’s reversal in Dobbs , and much 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 clarify liberty’s meaning, Dobbs turned to an account of the nation’s “ history and tradition” that wholly excluded the voice and experience of the enslaved and the disfranchised.

The Court could have considered a wider array of sources in interpreting the liberty guarantee, as Professor Peggy Cooper Davis has long urged. Since Dobbs , she and Professor Michele Goodwin have looked to the diaries of the enslaved , including Sojourner Truth and Harriet Jacobs. What if a court considered the diary of Elizabeth Keckley, a Black woman born into slavery who would work for Mary Todd Lincoln and write of the terror of family separation, and of years of rape and the pregnancy that followed. As Frederick Douglass’s voice in McDonald demonstrates, the voices of Sojourner Truth, Harriet Jacobs, and Elizabeth Keckley could one day guide America, making vivid liberty’s meaning in the pages of United States Reports .

Claims for sexual, reproductive, and family freedom continued from generation to generation in ratification’s wake. Yet today these claims are disparaged by men as not-law, not entitled to the protection of the Amendment that property and contract are. Constitutional interpreters inside and outside courts can, and should, consider the views of lawmakers and the people they governed, including those who could not shape law after centuries of exclusion from voting, office, 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.