Document Type

Article

Comments

Historicism, Progress, and the Redemptive Constitution, 26 Cardozo L. Rev. 1041 (2005)

Abstract

It is frequently said that there is a necessary relationship between constitutionalism and history. As Stephen Griffin has written, "[c]onstitutional interpretation is always backward-looking ....It draws on the past in order to provide legal authority to the present. Even as it abstracts from historical context, then, constitutional interpretation is dependent on it for its status as law." To say this is to make two related claims. The first one is that constitutions have an ineluctable relationship to history, because they arrive to us from the past. The second one is that constitutions always face a question of legitimacy that is also a question of history: How can this text from the past have legitimacy and authority over the people today?3 One foundational question of constitutional interpretation, then, is: How can we provide an account of constitutional meaning that reconciles the historicity of the Constitution with its present day legitimacy? Accepting that we must think historically if we want to think constitutionally, and that we must, when thinking historically, also account for the present day legitimacy of the Constitution, what kind of history should we practice? This Article is concerned with constitutional historiography, which is to say, the question of how theorists, lawyers, and judges elaborate the past in constitutional context. How ought we conceive of and investigate constitutional history and the backward-looking development of meaning that U.S. constitutionalism is based upon? To explore these questions, this Article draws upon the writings of the Frankfurt School theorist Walter Benjamin, who thought a great deal about the concept of history, but little, if at all, about constitutionalism. By exploring Benjamin's concept of history, and his understanding of the three different methodological approaches to history that he postulates-historicism, progressivism, and redemptivism-1 hope to make more visible some of the ways that we think about constitutional history, and some of the effects that these modalities have on our present day constitutional order. My project here is to add to our understanding of constitutional practices, and to make visible the dangers of the most common methodologies through which constitutional thinkers approach the past. One central supposition of this Article-one that I will defend throughout its course-is that our view of history strongly influences our ability to understand and react to the needs of the present.

Date of Authorship for this Version

2005

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