The Politics of Constitutional Memory

• Author: Reva B. Siegel
• Position: Nicholas deB. Katzenbach Professor of Law, Yale University
• Pages: 19-58

PAPERS

The Politics of Constitutional Memory

REVA B. SIEGEL*

ABSTRACT

Those who sought votes for women made claims for liberty and equality in

the family on which constitutional law might now draw—but there is no trace

of their voices or claims in constitutional law. The Supreme Court scarcely

mentions the Nineteenth Amendment when interpreting the Constitution. Nor do

Supreme Court opinions mention those who led women’s quest for political

voice or the constitutional arguments they made in support of women voting,

even though these arguments spanned two centuries. There is no method of

interpretation that the Justices employ with sufficient consistency to account for

this silence in our law.

This Article introduces the concept of constitutional memory to explain this

silence in our law. Constitutional interpreters produce constitutional memory

as they make claims on the past that can guide decisions about the future. It is

the role of constitutional memory to legitimate the exercise of authority; but

constitutional memory plays a special role in legitimating the exercise of

authority when constitutional memory systematically diverges from constitu-

tional history. Systematic divergence between constitutional memory and con-

stitutional history can legitimate authority by generating the appearance of

consent to contested status relations and by destroying the vernacular of resist-

ance. Though women contested their lack of political authority in the constitu-

tional order over two centuries, there is no trace of their arguments in

constitutional law.

To illustrate, the Article examines a long-running tradition of suffrage argu-

ment that began before the Reconstruction Amendments and continued in evolv-

ing forms after the ratification of the Nineteenth Amendment: that women

needed the vote to democratize the family. Two centuries of constitutional argu-

ments are nowhere reflected in the United States Reports. As a consequence,

constitutional doctrines about liberty and equality in the family appear to lack

historical antecedents.

But argument, inside and outside of courts, can counter the politics of mem-

ory. Justices across the spectrum regularly make heterodox claims on the past.

Constitutional interpreters can invoke the voices of the disfranchised and the

* Nicholas deB. Katzenbach Professor of Law, Yale University. I am grateful for the research

assistance of Nicholas Bernold, Duncan Hosie, Rekha Kennedy, Chelsea Thompson, Aubrey Stoddard,

Sruthi Venkatachalam, and Bardia Vaseghi. © 2022, Reva B. Siegel.

19

concerns that the disfranchised brought to the democratic reconstruction of

America. Imagine how we might understand our Constitution in another gener-

ation if we did.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

I. CONSTITUTIONAL MEMORY: OF NAMING, SPEAKING, VOTING,

LEADING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

II. VOTING AND THE FAMILY—A BRIEF HISTORY . . . . . . . . . . . . . . . . 30

A. The Republican Household: Voting and the Family . . . . . . . . 32

B. Suffrage Argument—Democracy and the Family . . . . . . . . . . 34

1. Claims on the Constitution—Individualism, the Family,

and the Claim for Equal Treatment . . . . . . . . . . . . . . . . . 34

2. Claims on the Constitution—The Vote as a Claim for the

Democratization of the Family . . . . . . . . . . . . . . . . . . . . 35

C. Family and Citizenship: How Claims for Democratization of

the Family Evolved in the Twentieth Century . . . . . . . . . . . . . 39

D. Constitutional Argument Lost to Constitutional Memory . . . . 45

III. INTEGRATING SUFFRAGE HISTORY INTO CONSTITUTIONAL LAW . . . 46

A. Erased or Irrelevant?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

B. Incorporating the Suffrage Argument as Positive and

Negative Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

IV. WOMEN AS CONSTITUTION-MAKERS. . . . . . . . . . . . . . . . . . . . . . . . 57

20 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:19

INTRODUCTION

[T]he perception of racial classifications as inherently odious stems from a

lengthy and tragic history that gender-based classifications do not share.

Justice Lewis Powell, University of California v. Bakke.

1

When the Constitution has not spoken, the Court will be able to find no scale,

other than its own value preferences, upon which to weigh the respective

claims to pleasure. Compare the facts in Griswold with a hypothetical suit by

an electric utility company and one of its customers to void a smoke pollution

ordinance as unconstitutional. The cases are identical.

Robert Bork, Neutral Principles and Some First Amendment Problems.

2

We often ask about the relationship between constitutional law and history.

3

In

this Article I consider how constitutional argument, inside and outside of courts,

makes claims on the past through constitutional memory. Constitutional memory is

not coextensive with history, and often excludes history, sometimes intentionally.

4

Timothy Snyder recently analyzed laws banning the teaching of critical race theory as “memory

laws” enacted in other countries to guide public understanding of the past, either by mandating a

particular interpretation of events or forbidding discussion of certain events. See Timothy Snyder, The

War on History Is a War on Democracy, N.Y. TIMES MAG., June 29, 2021, at 38, https://www.nytimes.

com/2021/06/29/magazine/memory-laws.html [https://perma.cc/HAE5-RXVV].

The Constitution’s interpreters are continuously producing constitutional memory

as they make claims on the past to guide decisions about the future—as they tell sto-

ries about the nation’s past experience to clarify the meaning of the nation’s commit-

ments, to guide practical reason, and to help express the nation’s identity and

values.

5

Constitutional memory plays a special role in organizing a polity and in

1. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 303 (1978) (Powell, J., concurring).

2. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 7

(1971).

3. See Jack M. Balkin, Lawyers and Historians Argue About the Constitution, 35 CONST. COMMENT.

345, 345 (2020) (“The quarrel between lawyers and historians about the proper use of history in

constitutional law is an old one. It predates the rise of conservative originalism in the 1970s and

1980s.”).

4.

5. We could describe constitutional memory as a form of collective memory forged through

constitutional interpretation. See generally Chris Weedon & Glenn Jordan, Collective Memory: Theory

and Politics, 2 SOC. SEMIOTICS 143 (2012) (reviewing recent scholarship on collective memory). See

also Allan Megill, History, Memory, Identity, 11 HIST. HUM. SCI. 37, 42 (1998) (“‘Memory’ arises as a

special preoccupation in situations where people find themselves engaged in self-designation, for it

serves as a stabilizer of and justification for the self-designations that people claim.”); Reva B. Siegel,

Collective Memory and the Nineteenth Amendment: Reasoning about “the Woman Question” in the

Discourse of Sex Discrimination, in HISTORY, MEMORY, AND THE LAW 134 (Austin Sarat & Thomas R.

Kearns eds., 1999) (“[N]arratives about the genesis of social arrangements help constitute social groups

as collective subjects and, in so doing, construct their commonsense intuitions about the actual and

proper organization of social relations. Scholars call this narrative matrix ‘collective’ or ‘social’

memory.”).

Benedict Anderson famously described nations as “imagined communities” that give people a sense

of “history, place, and belonging.” Weedon & Jordan, supra note 5, at 143 (citing BENEDICT ANDERSON,

IMAGINED COMMUNITIES: REFLECTIONS ON THE ORIGIN AND SPREAD OF NATIONALISM (2006)). These

constructions of the nation’s past are of course the object of perpetual contest. Recent work in post-

colonial studies, for example examines “the cultural politics of memory, in particular what motivates the

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