Mugambi Jouet (University of Southern California Gould School of Law) has posted Projecting the Past Into the Future of Constitutionalism (University of Pennsylvania Law Review Online (forthcoming 2025)) on SSRN. Here is the abstract:
The distinctive weight of history in American constitutionalism should itself be historicized. This Article explores several features of the historiography, intellectual history, and social fabric of the United States that shed light on this question. In particular, the modern divide between living constitutionalism and originalism echoes two earlier divides in American history: the disagreement over the nature of “American exceptionalism” and the split of American Christianity into modernist and traditionalist currents. Even as societal polarization has surged in recent decades, Americans still tend to share a civil religion. This relatively bipartisan and ecumenical form of American patriotism or nationalism is rooted in the celebration of the Founding Fathers, although conservatives and liberals have again diverged in lessons to be learned from these past figures.
This sociohistorical context is helpful to understand Jack Balkin’s book Memory and Authority, which thoughtfully explores the role of history in American constitutionalism and the influence of past framers in the national psyche. As these phenomena will remain significant for the foreseeable future, the book should be situated in the wider evolution of American society.
A growing focus on the past may ultimately shape America’s future by incentivizing reliance on history as a central method of constitutional interpretation, because parties may fear being at a disadvantage if they fail to do so. Besides the risk of instrumentalizing the past, this approach may undermine the value of history when it seemingly lacks an immediate practical purpose, thereby exacerbating the wider decline of the humanities. While historical research may certainly enhance legal decision-making, studying and understanding the past is inherently valuable.
Recommended.
