Abstract
Excerpted From: Ariela Gross, Erasing Slavery: The Uses and Misuses of the History of Slavery and Reconstruction in Constitutional Interpretation, 173 University of Pennsylvania Law Review 2123 (June, 2025) (163 Footnotes) (Full Document)
In Memory and Authority, Jack Balkin forcefully makes the case for the power of historical argument in constitutional interpretation. Over the years, often in conversation with Reva Siegel, he has shown us that “constitutional memory” carries major weight not only in the U.S. Supreme Court's jurisprudence, but in the way myriad constitutional interpreters, including social movements, mobilize the Constitution in different ways towards different ends. In this brilliant book, Professor Balkin analyzes the varied forms and uses of history, memory, and erasure in constitutional debate across several centuries. On one side of the debate, he explains, “[a]t stake in constitutional memory is which historical figures and movements will count as makers of constitutional meaning for the present. If constitutional memory features only a small group of white men as the central actors, the American constitutional tradition belongs to them.” But he recognizes the fallacy in this position, instead advocating that “we should embrace an expansive conception of collective constitutional memory,” recognizing the ““dialectical [constitutional] tradition” of the United States, created by multiple groups and individuals at different levels of society.
Professor Balkin directs us to see battles over constitutional memory as “exercises in memory entrepreneurship” and exhorts us to reinterpret the Reconstruction Amendments by
expand[ing] constitutional memory to include the concerns of the people for whom the Reconstruction Amendments were actually created--both enslaved women and enslaved men. Suppose we were to ask what they valued about freedom and what denials of liberty they suffered. Then these rights of sexual freedom, marriage, and family formation no longer seem peripheral. They seem obvious and central.
This Article draws from a larger project about the efforts of white Americans, from the moment the last shot was fired in the Civil War, to erase slavery from the history of the Constitution, and to erase the perspectives of the Black people who fought to end slavery and claim freedom and citizenship for themselves. That impulse--to erase slavery from memory, to emphasize emancipation as a moment of national rebirth obliterating what came before-- helps politicians and judges today to deny slavery's legacies and afterlives. By telling a story in which slavery was buried in the deep past, and freedom was a gift from white people to Black people, opponents of Black rights in the aftermath of Reconstruction promoted a nationwide retreat from the promise of citizenship and equality embodied by the Reconstruction Amendments.
Today's Supreme Court majority has adopted a version of history promulgated by radical movement conservatives in which slavery ended with finality in 1865 and the debt for slavery was paid with the Civil War. Despite claiming fidelity to the original meaning of the Constitution, the radical majority imagines a Constitution that already contained timeless principles of colorblindness and freedom, in which slavery was merely a temporary deviation. This Article will draw the connections between popular commemoration and the constitutional memory of slavery and emancipation, as they were contested during Reconstruction, and as they are contested today.
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In the summer of 2020, protestors flooded Lincoln Park demanding the removal of the Emancipation Memorial. As one protestor explained, “This statue right here embodies the white supremacy and the disempowerment of black people that is forced upon us by white people.” President Trump signed an executive order protecting monuments and statues, and a chain link fence was erected around the memorial to keep protestors away. The memorial remains standing in Lincoln Park, although a replica on the Boston Common has been removed in response to protests there. Racial justice activists have not only challenged the white-savior freedom story, but the many aspects of our commemorative landscape that date from the Jim Crow era. In Natchez, Mississippi, a new African American history museum has opened, and a small marker now stands at the Forks of the Road commemorating the slave market that once stood there.
A newly energized right-wing movement has met these protests and challenges with a powerful backlash, including a broad effort by Republican legislatures to mandate that the histories of slavery and racism taught in American schools will match the conservative political version of the slavery-to-freedom story. They portray slavery as not only a deviation from true “American values,” but also as an omnipresent, almost natural feature of all world civilizations, drawing attention to the small number of African Americans who owned slaves and decoupling slavery from race. In this way, right-wing politicians, pundits, and judges absolve white Americans, and the U.S. government, of responsibility for the legacies of slavery. Today, the Trump Administration has taken the erasure even farther, arguing in “Restoring Truth and Sanity to American History” that our museums and classrooms must be purged of the ideology that “race is a human invention” and wiping Harriet Tubman and other figures of the Black freedom struggle from our public history.
The connections between this erasure of public memory and the Supreme Court's erasure of the constitutional memory of slavery run deep. The same battles that animate cultural and political struggles over monuments, museums, and classroom curricula also take place in the Supreme Court. Just a decade after the end of slavery, the Supreme Court overturned the prosecutions of a white mob killing Black people in cold blood to shut down their political participation, seeing their actions as entirely removed from the recent past of enslavement. Seven years later, the Court told Black Americans that it was time for them to cease being “special favorite[s] of the laws,” putting enslavement in the deep past. In the intervening century and a half, the Court has too often kept slavery in the deep past, imagining a Constitution of timeless colorblind principles and absolving the United States of any obligation to remedy the harms of racial injustice.
Today, the Justices in the conservative majority either ignore the racial past (Chief Justice Roberts) or elaborate a revisionist memory of a colorblind Constitution (Justice Thomas), while claiming fidelity to the original meaning of the Constitution and finding its meaning in a “history and tradition” forged by white men. Justice Jackson's SFFA dissent provides a glimpse of an alternative constitutional memory, one that recognizes the broad legacies of slavery in all aspects of American life and looks to that historical context for an understanding of the true meaning of equal protection of the laws.
Distinguished Professor of Law and History, UCLA School of Law,
