Loading...
The Politics of Constitutional Memory
Siegel, Reva
Siegel, Reva
Files
Abstract
Those who sought votes for women made claims for liberty and equality in
the family on which constitutional law might now draw-but there is no trace
of their voices or claims in constitutional law. The Supreme Court scarcely
mentions the Nineteenth Amendment when interpreting the Constitution. Nor do
Supreme Court opinions mention those who led women's quest for political
voice or the constitutional arguments they made in support of women voting,
even though these arguments spanned two centuries. There is no method of
interpretation that the Justices employ with sufficient consistency to account for
this silence in our law.
This Article introduces the concept of constitutional memory to explain this
silence in our law. Constitutional interpreters produce constitutional memory
as they make claims on the past that can guide decisions about the future. It is
the role of constitutional memory to legitimate the exercise of authority; but
constitutional memory plays a special role in legitimating the exercise of
authority when constitutional memory systematically diverges from constitutional
history. Systematic divergence between constitutional memory and constitutional
history can legitimate authority by generating the appearance of
consent to contested status relations and by destroying the vernacular of resistance.
Though women contested their lack of political authority in the constitutional
order over two centuries, there is no trace of their arguments in
constitutional law.
But argument, inside and outside of courts, can counter the politics of memory.
Justices across the spectrum regularly make heterodox claims on the past.
Constitutional interpreters can invoke the voices of the disfranchised and the
concerns that the disfranchised brought to the democratic reconstruction of
America. Imagine how we might understand our Constitution in another generation
if we did.