Status Updates From Memory and Authority: The U...

As Laura Kalman put it, the neorepublicans rummaged through the past ‘to find arguments for whatever vision of the social order they wished to promote. By mooring their vision in the Founding, law professors believed they could make a more powerful case for it. They could claim kinship with the Founders.’

Forgotten injustices lead people to assume that the present is more or less justified…Erasure amplifies the moral meaning of what is remembered, while evaporating the moral meaning of what is erased. If we did not remember the civil rights movement, its moral authority—and its ability to shape our views of paradigmatic cases of justice and injustice—would disappear.

The conceit of originalism is that it offers stability and permanence in a changing world. In fact, originalism is a moving target, the product of each generation’s interaction with the historical record of the past.

The perpetual retrofitting of originalist theory to reach particular results leads to the sneaking suspicion that what really has constitutional authority in the United States is not the original meaning of the Constitution itself but rather contemporary social and political values, to which originalist theories must continually conform.

To understand the attractions of originalism in the United States, one must stop thinking of it primarily as a theory of interpretation and start thinking about it as a cultural narrative. Cultural memory, not philosophical theory, is the best explanation for Americans’ attraction to originalism in politics and law.

History matters to constitutional interpretation because people believe that history bestows authority on their arguments or, conversely, that it undermines the authority of opposing arguments. History matters in constitutional interpretation because authority matters.