The Supreme Court and the Memory of Evil

Abstract

This Article commemorates the Sesquicentennial of the Fourteenth Amendment by exploring the Supreme Court’s engagement with the memory of slavery and segregation. It examines major decisions, not merely as jurisprudential landmarks, but as monuments of collective memory. The Article suggests that the Court has invoked the memory of slavery and segregation in two primary ways—through two distinct “modes” of memory. The first of these, which I call the parenthetical mode, responds to the evil past by stressing continuities with an older, nobler tradition. It presents the evil era as exceptional and aberrational, and it depicts the constitutional response to the evil era as a terminal close parenthesis. The second framework, which I call the redemptive mode, highlights caesura, rather than continuity, and underwrites aggressive judicial action to eradicate any lingering vestiges of past evils. The Article contends that, in every period of the Court’s history—including the present—the parenthetical mode has predominated over the redemptive. The immediate effect, at times, has been pernicious. The cumulative effect has hindered the Court and the country from coming to terms with the evils of our past.

Keywords: Constitutional Law, Constitutional History, Supreme Court, Fourteenth Amendment, Race, Affirmative Action, Collective Memory