Gienapp on History, Law and Constitutional Rupture

Jonathan Gienapp, Stanford University, has posted History, Law, and Constitutional Rupture:

The principal problem of U.S. constitutional interpretation centers on the passage of time. As time passes, things change. That is especially true of constitutionalism and law, where older forms must be applied to novel and often unforeseen circumstances, something the American example amply demonstrates. The U.S. Constitution was made a long time ago and must govern a world markedly different from the one for which it was made. What we should do with older constitutional forms (in the case of the U.S., quite old) in a much-changed world poses a challenge that any theory of constitutional interpretation must address. Call this the problem of social drift. The problem of constitutional time runs deeper than just this, however. A more fundamental, and often less perceptible, form of change can sever constitutional present from past. In the first instance, a gap widens between constitutional form and the social world that constitution is meant to regulate and channel; in the second instance, the change takes place within the domain of constitutionalism itself. As time passes, how people think about constitutionalism and its attendant subjects—law, government, power, liberty, rights—can also transform. While many recognize how the interpretation of a constitution might change as society itself changes, it is harder to see how the very idea of a constitution itself can also imperceptibly take on new shape and meaning through the changed habits, assumptions, and legal consciousness of those interpreting it. This less recognized form of change, wrought by the passage of time, defines U.S. constitutionalism every bit as much as the first.

Despite its central importance, the challenge that historical rupture poses for modern constitutional interpretation is still far too neglected. After all these years of arguing over the appropriate use of history in constitutional interpretation, the most important problem raised by the endeavor continues to be downplayed and ignored. That neglect has become especially glaring of late, as the current Supreme Court has placed greater legal weight on our constitutional past than arguably ever before. It is high time to confront the problem of historical rupture in U.S. constitutional interpretation. Anyone who appeals to history in U.S. constitutional argument—most especially originalists, but not just them—must acknowledge and explain what is to be done about the gulf separating us from earlier forms of constitutional thinking. If we are to obey the past, then we need to surmount the chasm separating us from it. We need to recognize that our fundamental law was created by people equipped with a different legal consciousness. We need to do the work of historicizing earlier forms of constitutional thinking that do not map neatly onto our own. Modern originalists can neither ignore nor bracket this fact by insisting, as they often do, that they are engaged in an interpretive activity called “law” that is distinct from “history,” which supposedly frees them from the need to take past differences seriously. In one way or another, the problem of historical rupture touches everyone who wields the constitutional past in our contested present. 

--Dan Ernst