William & Mary Bill of Rights Journal
Abstract
Many arguments in constitutional law invoke collective memory. Collective memory is what a group—for example, a religion, a profession, a people, or a nation—remembers and forgets about its past. This combination of remembering and forgetting helps constitute the group’s identity and structures its values and its commitments. Precisely because memory is selective, it may or may not correspond to the best account of historical facts.
The use of collective memory in constitutional argument is constitutional memory. It shapes people’s views about what the law means and why people have authority. Lawyers and judges continually invoke and construct memory; judicial decisions both rely on constitutional memory and produce constitutional memory.
What is remembered and what is erased has powerful normative effects. It shapes our understanding of who we are and how things came to be; what is traditional and what is an innovation; who has committed wrongs and who has been wronged; what we owe to others and what they owe to us. Memory provides resources for understanding the world around us and assigning praise and blame. What is erased from memory, by contrast, can make no claims on us.
Part I of this Article describes the phenomenon of collective memory, the ideological effects of remembering and forgetting, and the role of memory entrepreneurs in telling stories about the past. Part II explains how constitutional memory shapes constitutional interpretation, and how arguments from precedent, original meaning, and tradition rely on combinations of memory and erasure. Part III argues that, in constitutional construction, we should employ an expansive conception of memory, attending to the ideas and experiences of persons and groups left out of formal constitution making, as well as social and political movements that have shaped the American constitutional tradition.
This abstract has been adapted from the author's introduction.