Cass R. Sunstein (Harvard Law School) has posted Restoration Narratives on SSRN. Here is the abstract:
There are narratives of constitutional restoration. They have immense appeal, and they appear to be on the ascendency. They take the following stylized form: “At the time of the founding, a constitutional provision meant X. Almost everyone understood that it meant X. At some point after the authoritative moment, an inexcusable and even shocking blunder was made. Actually the blunder was made by the Supreme Court itself. The provision was understood to meant Y, even though it obviously meant, means, and will forever mean X. Now the Court restores meaning X.” Originalists tend to be prominent restorationists, embracing restoration narratives, but originalists need not be restorationists, and restorationists need not be originalists. Restorationists might reject originalism as it is generally now understood. Restorationism, as we might call it, is simultaneously a big tent, encompassing various methods of interpretation, and a distinctive approach to constitutional law. It helps define and organize the work of the Roberts Court, especially in the areas of executive power, affirmative action, and judicial review of agency interpretations of law. From a certain point of view, Humphrey’s Executor v. FTC, Plessy v. Ferguson, and Chevron v. NRDC are essentially the same case. Restorationism can be combatted in identifiable ways; some of them accept its basic premises, but others do not. Restorationism may or may not rewrite the past; it may or may not offer an accurate account of history. Restorationism can be distinguished from other narratives, including narratives of translation, preservation, and (what justices see as) moral progress. The opposition between narratives of restoration and narratives of moral progress is especially interesting, and it helps define the difference among eras of constitutional law.
An important paper that provides deep insight. Highly recommended! Download it while it’s hot!
For an introduction to the role of narrative in legal theory, see Legal Theory Lexicon: Narrative and Normativity.
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