Reva B. Siegel (Yale Law School) has posted History or Memory?: Claims on the Past in Constitutional Argument Over Originalism, Civil War/Reconstruction, and MAGA (36 Yale Journal of Law and Humanities 479 (2026)) on SSRN. Here is the abstract:
Why distinguish between history and memory in constitutional law? It helps clarify the authority of the past in constitutional argument. When we ask “what happened?” in arguments over the Constitution, we are often answering the question “what are we to do?” Our concerns are normative as well as positive. We sometimes answer the “what are we to do” question by asking “what kind of a people are we”?
Once we recognize the power of claims on the past to forge group identity and to underwrite reasons for action, it is easier to recognize memory’s footprint inside of law. Paralleling the collective memory usage, I have called these normative claims on the past in arguments about the Constitution’s meaning “constitutional memory” claims.
Constitutional memory is not restricted to a particular form of argument or theory of interpretation. Instead, constitutional memory works through numerous forms of constitutional argument—both originalist and nonoriginalist. The constitutional memory analytic helps us identify the many forms of normative appeal in constitutional argument and to understand the sources of law’s authority, its power to persuade.
The Constitution’s preamble begins, “We the People. . .” Memory helps constitute We the People, and so is as foundational to our constitutional democracy as is the infrastructure of representation. Constitutional memory claims legitimate the exercise of government authority. They can be challenged on positive grounds (bad history) or normative grounds (bad reasons).
To illustrate, the Article draws on the memory of the Civil War, showing how it has served as a force for national division and for national reconciliation, and for race relations outside and inside of law. This history demonstrates that constitutional memory is contested, a resource for the powerful to dominate the powerless—and through counter-memory, for the powerless to challenge the powerful.
Constitutional memory offers an important framework for understanding originalism, while offering new perspectives on non-originalist argument. It helps us to recognize how many kinds of positive-normative claims on the past there are in our constitutional tradition, to appreciate that claims on the past are a locus of democratic struggle, and to learn of the many ways that claims on the past are an important resource in forging democratic community.
Siegel’s engagement with Jonathan Gienapp’s Against Constitutional Originalism is especially valuable. Gienapp contends that legal claims about the past are “anachronistic”—that history’s relationship to the past is primary and authentic, while law’s is contrived. Siegel demurs. On her view, positive-normative claims about the past are a core practice of constitutional argument with its own complex logic; they are not mistakes in chronology. This is an important point, and originalists should take note: the claim that constitutional interpretation must answer to the discipline of history is one that Siegel herself does not fully embrace.
Nonetheless, I have a reservation about the constitutional memory analytic. Siegel defines constitutional memory functionally—to include all claims about the past asserted for the purpose of establishing identity or obligation. That definition may elide the distinction between claims about the communicative content of the constitutional text and the argumentative function of the claim. The Fixation Thesis—the claim that the communicative content of the constitutional text was fixed at the time each provision was framed and ratified—is a claim about linguistic facts; its truth does not depend on the uses to which it is put. Normativity enters the originalist picture at a different point, via the Constraint Principle, which is explicitly and unapologetically normative. On this understanding, public meaning originalism does not disguise the normative as the positive; it distinguishes them.
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