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History or Memory?: Claims on the Past in Constitutional Argument Over Originalism, Civil War/Reconstruction, and MAGA
Siegel, Reva B.
Siegel, Reva B.
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Abstract
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.
Washington Post, April 6, 2025
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, 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.’” “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, 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, 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.”