This Essay considers how America’s history and memory regarding race complicate constitutional interpretation. If scholars interpreted the Constitution merely to determine what the majority view of the Constitution may have been when it was ratified—its original public meaning (“OPM”)—the loose use of history and memory to interpret the Constitution might be acceptable. What the People—whose membership is contested—thought the Constitution meant when it was framed is interesting, so long as it does not bind us today. However, as Jack Balkin notes in Memory and Authority: The Uses of History in Constitutional Interpretation, lawyers and judges attempt to use history and memory as authority to interpret the Constitution to bind and govern us today. The use of history and memory with respect to race and constitutional interpretation is problematic. Collective memory regarding race can amount to misremembered or ignored history that reflects the stories America wants to tell itself about race, rather than the full history of race and slavery in America. A full account of the complexity of race and the history of Black Americans may yield a range of OPMs that constitutional text can bear rather than a singular OPM. That could result in a reinterpretation of constitutional text, such as the Reconstruction Amendments, on a more substantial foundation of history and memory that might create new constitutional meanings that comport with and embody the freedom and equality principles that are embedded in the Constitution but have been occluded by a narrow collective memory of race in America.
Chambers,, Henry L., Jr. (Thu,) studied this question.