Projecting the Past into the Future of Constitutionalism: History, Atemporality, and American Society

Authors

Mugambi JouetFollow

Abstract

The U.S. Supreme Court is increasingly asserting “history and tradition” as the standard to settle divisive constitutional debates on abortion, guns, and beyond. As scholars debate this shift, Jack Balkin’s book Memory and Authority stands out in exploring the role of history in American constitutionalism. However, its account should be situated in a larger sociohistorical context. This Article explores features of the historiography and social fabric of the United States that shed light on the distinctive weight of history in American constitutionalism.

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 on lessons to be learned from these past figures. Despite the transformations brought by modernity and a polarizing America, its constitutional debate has acquired an atemporal quality given the recurrence of divides over original intent and national traditions. Time passes, circumstances change, yet similar fractures persist.

Ultimately, a growing focus on the past may further incentivize reliance on history as a central method of constitutional interpretation, as 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.

Repository Citation

Mugambi Jouet, Projecting the Past into the Future of Constitutionalism: History, Atemporality, and American Society, 173 U. Pa. L. Rev. Online (2025).
Available at: https://scholarship.law.upenn.edu/penn_law_review_online/vol173/iss1/5