The Roberts Court has embarked on a constitutional revolution in many different areas of law, including reproductive rights, the Second Amendment, and the Religion Clauses. The Court’s conservative supermajority has repeatedly turned to history to justify and legitimate its decisions. Originalism is an important part of the Court’s language. It has recently adopted a new model of “text, history, and tradition” in important cases like Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Dobbs v. Jackson Women’s Health Organization, New York State Rifle and Pistol Association v. Bruen, and Kennedy v. Bremerton School District.
Because history is a central source of justification for the Roberts Court’s revolution, it is crucial to understand how history is being used—and sometimes misused and even manipulated—in its decisions.
Debates about the relevance of history to constitutional interpretation occurred in the 1980s and 1990s as the conservative legal movement was gaining prominence. Thirty years later, that movement is ascendant and controls the U.S. Supreme Court. Yet at this very moment of success, the Court’s conservative majority is not consistent in how it uses history. It alternates between many different forms of originalism, including its new emphasis on traditionalism. And sometimes—as in cases like Citizens United v. FEC, Parents Involved in Community Schools v. Seattle School Dist. No. 1, or Janus v. American Federation of State, County, and Municipal Employees—it dispenses with originalism altogether.
The affirmative action case from last year’s Term, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, presents an especially interesting example of how the majority, concurrences, and dissents relied on history from differing ideological perspectives. Reconstruction history does not support a colorblindness rule, and the different opinions offer a window into the uses and misuses of historical memory. In fact, the Congress that drafted the Fourteenth Amendment engaged in race-conscious remedies to address discrimination. Moreover, in the Court’s previous affirmative action decisions, even Justices who adhered to originalism repeatedly refused to discuss the original meaning of the Fourteenth Amendment. With the decision in favor of SFFA, the Court further embedded a malleable doctrine of text, history, and tradition into its jurisprudence.
This symposium seeks to bring together diverse scholars to publish leading scholarship addressing the many open questions about the role of history in constitutional interpretation, organized around Yale Law Professor Jack Balkin’s forthcoming book, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press 2024).
[Register here. Schedule and CLE credit information after the jump.
Schedule:
Friday, November 22
01:00 PM – 01:30 PM: Lunch and Check-In
01:30 PM – 02:00 PM: Introductory Remarks
02:00 PM – 03:30 PM: Panel 1 (Interpretation, Construction, and Change) Jack Balkin, Yale; Stephanie Barclay, Georgetown; Sherif Girgis, Notre Dame
03:30 PM – 03:50 PM: Break
03:50 PM – 05:20 PM: Panel 2 (Making Constitutional Meaning) Greg Ablavsky, Stanford; Paul Gowder, Northwestern; Amanda Shanor, Wharton
Saturday, November 23
09:00 AM – 10:00 AM: Breakfast and Check-In
10:00 AM – 11:30 AM: Panel 3 (History, Memory, and Civic Religion) Evan Bernick, Northern Illinois; Ariela Gross, UCLA; Mugambi Jouet, USC
11:30 AM – 11:45 AM: Break
11:45 AM – 12:45 PM: Panel 4 (Constitutional Storytelling) Kermit Roosevelt III, University of Pennsylvania; Noah Rosenblum, NYU
12:45 PM – 02:00 PM: Lunch
02:00 PM – 03:10 PM: Panel 5 (Opportunistic Originalism) Michele Goodwin, Georgetown; Alexander Tsesis, Florida State University
03:10 PM – 03:30 PM: Concluding Remarks
This multi-day program has been approved for a total of 6.5 Substantive CLE credits for Pennsylvania lawyers. CLE credit may be available in other jurisdictions as well. Attendees seeking CLE credit can make a payment via cash or check made payable to “The Trustees of the University of Pennsylvania” on the day of the event or prior to the event via the online registration link in the amount of $260.00 ($130.00 public interest/non-profit attorneys) or $40.00/per credit hour ($20.00/ per credit hour for public interest/non-profit attorneys) if not attending the entire symposium. In order to receive the appropriate amount of credit, passcodes provided throughout the program must be noted in your evaluation form.
Penn Carey Law Alumni receive CLE credits free through The W.P. Carey Foundation’s generous commitment to Lifelong Learning.
