Table of Contents Introduction I. After Appomattox: 1865-1896 A. The Miller's Tale: The Divided Rhetorics of the Slaughter-House Cases B. Memory and Elision in United States v. Cruikshank C. Memory and Synthesis: Strauder v. West Virginia D. Leaving the Parenthetical Behind: The Civil Rights Cases E. Erasure and Resumption: Plessy v. Ferguson II. After Plessy: 1896-1954 A. The Silent Years: 1896-1911 B. The Progressive Era: 1911-1937 1. Don't mention it: Bailey v. Alabama 2. A touch too brazen?: Buchanan v. Warley 3. Memory quiescent, equality (slowly) rising C. The Roosevelt Court and the Dunning School: 1937-1954 1. Reconstruction and its discontents 2. Incorporation's battle royal: Adamson v. California III. After Brown: 1954-Present A. From Brown to the Civil Rights Act: 1954-1964 1. Justice Frankfurter and the parenthetical tradition 2. Redemptive rumblings B. From the Civil Rights Act to Bakke: 1964-1978 1. The Civil Rights Act and its aftermath 2. The Warren Court and the redemptive mode 3. Justice Black, incorporation, and memory 4. Justice Frankfurter's heirs 5. Bakke C. From Bakke to Grutter: 1978-2003 1. "Our" federalism 2. Colorblind? 3. Diversity or redemption?: Grutter and Gratz D. Constitutional Memory on the Roberts Court 1. Arms and memory 325 2. Brown's contested memory: Parents Involved 3. Twilight of the Voting Rights Act Conclusion Introduction
Modern polities are constituted in two fundamental ways: legally, through the constitution; and culturally, through collective memory. (1) Inevitably, the former invokes the latter. "No set of legal institutions or prescriptions," wrote Robert Cover, "exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture." (2) Constitutions perform a crucial part of their constituent work by harnessing the power of a common past and giving it legal form. (3) The appeal to the past is part of the constitution's bid for legitimacy. Memory supports the constitution's claim to speak for the people. By invoking memory, the constitution asserts its claims on citizen hearts and hands. The "mystic chords of memory" (4) intone a canticle of allegiance.
Such mnemonic appeals to allegiance, of course, were common long before the modern constitutional era. (5) But the constitution provides a particularly powerful pulpit--an unusually resonant site of memory. (6) It retains that resonance through constitutional justice. Constitutional courts in many nations have invoked the ethos of a national epic and claimed the mandate of a common past. (7) Constitutional judges around the world have bolstered their decisions by frequent appeal to constitutional memory. (8)
The U.S. Supreme Court has been a pioneer in this regard. As I shall argue below, constitutional memory runs right through the center of the Court's historical canon--and of its anticanon. (9) But this Article is about how the Court has invoked the memory, not of revolutionary triumph, but of appalling evil-the memory of slavery, of segregation, and of their residues.
Many constitutions respond to historic evil, and many constitutional courts invoke the memory of that evil. (10) Unsurprisingly, for instance, the memory of Nazism has loomed large in the jurisprudence of the German Federal Constitutional Court; in the judgments of the Constitutional Court of South Africa, the memory of apartheid has loomed even larger. (11) But different courts have adduced the memory of evil in very different ways. Memory's contours shift with its contexts. In essential respects, however, the U.S. Supreme Court's mnemonic jurisprudence--its invocation of memory in published opinions--has remained remarkably consistent over time.
This has been especially true of the memory of slavery and segregation. Broadly speaking, the Court has invoked the memory of these evils within two general frameworks, which I shall call the parenthetical and the redemptive modes of memory.
The parenthetical mode views the evil era as exceptional--a baleful aberration from an otherwise noble tradition. I take the term "parenthesis" from Benedetto Croce, who allegedly dismissed fascism as "una parentesi" (a parenthesis) in Italian history. (12) Parenthetical jurisprudence looks beyond the evil era to older and enduring values. It sees constitutional provisions adopted after historic evil not as revolutionary, but as restorative. The watchword of the parenthetical mode is continuity. (13)
The animating spirit of the redemptive mode is not restoration, but antithesis. It seeks not to resume a noble tradition, but to reverse recent evils. Its basic posture is one of repudiation and redress. Redemptive jurisprudence is "never again" jurisprudence. It is not content merely to proclaim the evil era over, but works to root out any lingering vestige.
Both modes have risks. The parenthetical mode tends to underestimate the scope of past evil, and to do too little to redress it. The redemptive mode, on the other hand, frequently modifies the traditional methods and values of legal liberalism. It does so, to be sure, in the name of overcoming evil, but the effect remains distorting. The parenthetical mode risks fecklessness, the redemptive mode willfulness. The one might do too little to redress the past, the other too much to distort the present.
Different sensibilities will, of course, rate these risks differently. What I hope to demonstrate below is that throughout the history of the U.S. Supreme Court, the parenthetical mode has predominated over the redemptive, and that the consequences, at times, have been pernicious. More controversially, perhaps, I contend that this predominance persists, and with only isolated signs of abatement.
After Appomattox: 1865-1896
The parenthetical mode's dominance began early. From the very beginning, the Supreme Court's postbellum jurisprudence echoed and advanced the country's push for sectional reconciliation at the expense of racial equality. (14) In the process, the Court overwhelmingly viewed the historical evil of slavery through a parenthetical lens. The Court treated the Reconstruction Amendments not as a radical response to the centrality of slavery in American history, but as a narrow response to a localized evil. This limiting construction involved two distinct moves. First, the Court conflated slavery and secession, casting the postwar Amendments as a unified answer to a common evil. That evil, in the Court's narratives, was over. The Amendments ended slavery, just as the war ended secession. By treating the cure as definitive, the Court precluded treating the Amendments as a radical re-Founding in response to an evil in ongoing need of redemption.
Second, the Court sought, in effect, to transplant the Amendments retroactively onto "the original Constitution," (15) rather than read the original document in light of the new Amendments. The effect was to treat the Founders' Constitution as though it had never enshrined slavery, rather than to reconsider it in light of the radical dislocations that attended slavery's destruction. The Court did not treat the Amendments as the redemptive core of a postwar Constitution, but posited instead a single, unitary tradition--a tradition interrupted, to be sure, by slavery and secession, but resumed after a brief Reconstruction imposed a resounding close parenthesis.
There was, of course, a redemptive counternarrative--most notably in the dissenting opinions of the first Justice Harlan. But the dominant narrative was parenthetical. Indeed, the Court embraced a kind of conciliatory forgetting. In the case of Plessy v. Ferguson, (16) such forgetting was worse than amnesia. It was a brazen erasure, an unalloyed resumption of evil. Slavery was the original sin of the American Republic, and segregation marked a second fall. The Court was complicit in both evils. And it compounded that complicity with the cultic power of memory.
The Miller's Tale: The Divided Rhetorics of the Slaughter-House Cases
The process began with the Slaughter-House Cases, (17) in which a five-Justice majority held that the Thirteenth Amendment banned only slavery itself and close analogs; (18) that the Equal Protection Clause forbade de jure discrimination against blacks, but not much else; (19) and that the Privileges or Immunities Clause guaranteed only the privileges and immunities of national citizenship, which, on the Court's telling, were few and flimsy. (20) For all practical purposes, the Privileges or Immunities Clause was pronounced dead on arrival.
What interests us here is the memorial narrative that Justice Miller's opinion for the Court deployed en route to these holdings. Justice Miller began by insisting that the Reconstruction Amendments be read "in connection with the history of the times" that produced them. (21) "Fortunately," he added, "that history is fresh within the memory of us all, and its leading features, as they bear upon the matter before us, free from doubt." (22)
Justice Miller's story began with slavery, then passed swiftly to secession and war. (23) Unlike contemporary Southern apologists, Justice Miller insisted that the Civil War was, at bottom, about slavery. (24) So were the Amendments adopted thereafter. (25)
Justice Miller's narrative of the war and its constitutional aftermath was striking for its resolutely redemptive, emancipationist rhetoric--its talk of "armies of freedom" sallying forth "upon the soil of slavery." (26) Despite a somewhat patronizing reference to slavery's "poor victims," Justice Miller acknowledged the contribution of black soldiers who "proved themselves men in that terrible crisis." (27) Slavery was "the foundation of the quarrel," and its annihilation was the war's "main and most valuable result." (28)
Justice Miller's account referred to "the Constitution of the restored Union," suggesting not only a new constitutional era but a new Constitution. (29)...