Democratizing Constitutional Memory

The Court regularly makes claims on the past—claims that have grown in prominence since conservatives on the Roberts Court invoked “history and tradition” to overrule longstanding case law on religious free exercise, the right to bear arms, and the right to abortion in its 2021 term¹Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2416, 2428 (2022); N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022); Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242 (2022).
and to threaten other rights since.²See, e.g., Dep’t of State v. Muñoz, 144 S. Ct. 1812, 1827 (2024) (limiting the right to marry by holding that a citizen does not have a substantive due process liberty interest in bringing her noncitizen spouse into the country because the right is not a “ ‘deeply rooted’ tradition in this country”) (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)); see also Vidal v. Elster, 144 S. Ct. 1507, 1523–24 (2024) (Thomas, J., joined by Alito & Gorsuch, JJ.) (plurality opinion) (reasoning on history-and-tradition grounds that a content-based but viewpoint-neutral trademark restriction is permitted under the First Amendment).
The Court claims its historically based approach constrains judges by focusing interpretation on objective and impersonal facts in the past.³See infra Part I.

In refuting that account, this Foreword draws on scholarship I began before the Supreme Court’s history-and-tradition decisions and honed in dialogue with them. Appeals to the past in constitutional law, whether true, false, or selective, are commonly elements of normative arguments about our identity and obligations as a people that I term “constitutional memory” claims.⁴See infra Part II. For my work developing and employing the concept of “constitutional memory,” see infra note 26.
I examine gaps between constitutional memory and constitutional history to show how claims on the past in law can conceal, rather than constrain, the expression of judicial values—illustrating through a brief consideration of Dobbs v. Jackson Women’s Health Organization,⁵See infra Part II.
the decision reversing the abortion right.⁶See infra Part III.

Analyzing gaps between constitutional memory and constitutional history refutes core premises of the judicial constraint claim. Importantly, it brings into view new interpretive possibilities for “democratizing memory,” which the Foreword concludes by exploring.

Many critics of conservative historicism would spurn historical-based argument altogether in favor of argument from principle. But there are good reasons to combine argument from principle and memory. The point is not to accommodate the powerful. To the contrary: As we appreciate the pervasive gaps between history and memory in constitutional law, we can ask whose voice, experience, and perspective does law represent? Whose is absent? And how might we democratize constitutional memory and represent in law the perspectives of those unjustly denied voice in the making of American law for much of the nation’s history?⁷See infra Part IV.
In recalling efforts of the disfranchised to speak—whether by petitioning lawmakers or by resisting law—we can expand our accounts of constitutional lawmaking and identify new authorities to guide the application of constitutional principles.

Including these stories can reorient the law today. To take but one example: When we democratize constitutional memory—considering not only the views of lawmakers but of the people—we can see that American understandings of liberty include freedom from coercion in sex, reproduction, and family life.⁸See infra Part IV.

I. Judicial Constraint

How is a court’s decision declaring legislation unconstitutional different from the work of the political branches? In 1959, as backlash mounted to the Warren Court decision declaring school segregation unconstitutional, Professor Herbert Wechsler explained that what made a court’s judgment recognizable as a court’s judgment was that it rested on reason, not will. To function as “courts of law,” a court’s decision must be “entirely principled” and rest on “reasons with respect to all the issues in the case . . . that in their generality and their neutrality transcend any immediate result that is involved.”⁹Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1, 19 (1959).
And on these grounds, Wechsler concluded, Brown v. Board¹⁰Brown v. Bd. of Educ., 347 U.S. 483 (1954).
lacked a neutral principle: “Given a situation where the state must practically choose between denying the association to those individuals who wish it or imposing it on those who would avoid it, is there a basis in neutral principles for holding that the Constitution demands that the claims for association should prevail?”¹¹Wechsler, supra note 9, at 34.
Wechsler’s neutral-principles hypothesis earned fame¹²As of 2012, Wechsler’s article, supra note 9, ranked as the fifth-most cited article of all time, while Robert H. Bork’s discussion of neutral principles, Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971), ranked tenth. Fred R. Shapiro & Michelle Pearse, The Most-Cited Law Review Articles of All Time, 110 Mich. L. Rev. 1483, 1489 (2012).
—over critics’ objections¹³See Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 Harv. L. Rev. 1470, 1491–94 (2004) [hereinafter Siegel, Equality Talk] (canvassing contemporary criticism of Wechsler’s article as well as critics’ appreciation of the challenges courts faced intervening in inequality).
—even as it failed to quiet race conflict.

Today, the conservative Justices of the Roberts Court view judicial claims of principle with mistrust, as likely to mask the exercise of judicial will. Justice Scalia began this line of argument in a defense of originalism thirty years after Wechsler wrote,¹⁴See Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 863–64 (1989) (arguing that “by the adoption of such [principles] judicial personalization of the law is enormously facilitated”); see also Michael H. v. Gerald D., 491 U.S. 110, 127 n.6 (1989) (Scalia, J., joined by Rehnquist, C.J.) (plurality opinion) (urging judges “to adopt the most specific tradition as the point of reference”).
provoking a decades-long debate over “levels of generality,” in which Scalia asserted that reasoning from the facts of history imposed constraints on judges that reasoning from principles did not.¹⁵Reva B. Siegel, The Levels-of-Generality Game: “History and Tradition” in the Roberts Court, 47 Harv. J.L. Pub. Pol’y 563, 565 (2024) [hereinafter Siegel, Levels of Generality].
The debate has continued among the Justices on the Roberts Court, most recently in interpreting the Second Amendment in United States v. Rahimi.¹⁶United States v. Rahimi, 144 S. Ct. 1889, 1916 n.4 (2024) (Kavanaugh, J., concurring) (referring to “generality”); id. at 1925–26 (Barrett, J., concurring) (same); id. at 1929 (Jackson, J., concurring) (same); see also id. at 1909 (Gorsuch, J., concurring) (“Allow judges to reign unbounded by [text and history], or permit them to extrapolate their own broad new principles from those sources, and no one can have any idea how they might rule. (Except the judges themselves.)”).
In Rahimi, Justice Kavanaugh appealed to Justice Scalia in support of the claim that principles “can be found to point in any direction the judges favor,”¹⁷Id. at 1922 (Kavanaugh, J., concurring) (quoting McDonald v. City of Chicago, 561 U.S. 742, 804 (2010) (Scalia, J., concurring)).
but “[h]istory establishes a ‘criterion that is conceptually quite separate from the preferences of the judge himself.’ ”¹⁸Id. at 1912 (quoting Scalia, supra note 14, at 864).
“A history-based methodology,” Kavanaugh insisted, “imposes a neutral and democratically infused constraint on judicial decisionmaking.”¹⁹Id. at 1922. Kavanaugh derives his understanding of neutrality from Robert Bork. See id. at 1912 (quoting Bork, supra note 12, at 8 (1971)) (“To be an umpire, the judge ‘must stick close to the text and the history, and their fair implications,’ because there ‘is no principled way’ for a neutral judge ‘to prefer any claimed human value to any other.’ ”). Bork’s essay presents itself as exploring “the implications of Professor Wechsler’s concept of ‘neutral principles.’ ” Bork, supra 12, at 1.

This is no abstract theory but a call for wide-ranging transformation of constitutional law.²⁰See Joseph Blocher & Reva B. Siegel, The Ambitions of History and Tradition in and Beyond the Second Amendment, 174 U. Penn. L. Rev. (forthcoming 2026) (manuscript Section III.A.) (locating Justice Kavanaugh’s concurring opinion in Rahimi in an account of the history-and-tradition attack on means-ends review).
In asserting (without evidence) that the historical approach constrains judges more than means-ends review, Kavanaugh attacked means-ends scrutiny and balancing tests as judicial grafts on the Constitution,²¹Rahimi, 144 S. Ct. at 1921 (Kavanaugh, J., concurring) (citing Joel Alicea & John D. Ohlendorf, Against the Tiers of Constitutional Scrutiny, Nat’l Affs., Fall 2019, at 72, 73 (2019)).
as he has since his call for text, history, and tradition in 2011.²²Kavanaugh first asserted claims on text, history, and tradition in a dissent authored as a circuit court judge in 2011. See Heller v. Dist. of Columbia (Heller II), 670 F.3d 1244, 1271 (D.C. Cir. 2011) (Kavanaugh, J., dissenting).
Kavanaugh’s claim that an historically based jurisprudence imposes a neutral constraint on judicial decisionmaking rings hollow as soon as he mobilizes this claim to discredit a form of doctrine employed far beyond the Second Amendment. In 2022 alone, the Court applied history-and-tradition standards to expand the right to bear arms²³N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2130 (2022) (holding that, to survive judicial review, state firearm bans must be “consistent with this Nation’s historical tradition of firearm regulation”). For a glimpse of Bruen’s early impact, see Eric Ruben, Rosanna Smart & Ali Rowhani-Rahbar, One Year Post-Bruen: An Empirical Assessment, 110 Va. L. Rev. Online 20, 28–29 (2024).
and to overturn Roe v. Wade.²⁴Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2253 (2022) (“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”); id. at 2304–10 (Kavanaugh, J., concurring) (justifying overruling repeatedly on the ground of neutrality).
The Justices are continuing to employ these standards in new contexts, encouraging their spread.²⁵For cases in the 2023 Term, see supra note 2. These claims appeared in briefs in the 2024 Term. See Brief for Concerned Women for America and Samaritan’s Purse as Amici Curiae in Support of State Respondents at 26–27, United States v. Skrmetti, 144 S. Ct. 2679 (No. 23-477) (quoting Rahimi, 144 S. Ct. at 1921 (Kavanaugh, J., concurring) (quoting Alicea & Ohlendorf, supra note 21, at 73)) (defending a ban on gender-affirming care against equal protection challenge and arguing that “[i]ntermediate scrutiny, like the other ‘tiers of scrutiny,’ ‘ha[s] no basis in the text or original meaning of the Constitution’ ”)); Brief of Alliance Defending Freedom as Amicus Curiae in Support of Respondent at 3–4, Free Speech Coal. v. Paxton, 144 S. Ct. 2714 (No. 23-1122) (citing Justice Kavanaugh’s Rahimi concurrence as evidence that history, rather than means-end scrutiny, is best suited to adjudicating a First Amendment challenge to law regulating digital pornography).

II. How Judicial Claims on Constitutional Memory Express Values

Contrary to Justice Kavanaugh, appeals to the past in constitutional argument can advance value-laden claims about the scope of protected liberties. I call these “constitutional memory claims”: “What appear in constitutional argument as positive, descriptive claims about the past are often normative claims about the Constitution’s meaning—that is, constitutional memory claims.”²⁶Siegel, Levels of Generality, supra note 15, at 567. For a sampling of these works, see Reva B. Siegel, The Politics of Constitutional Memory, 20 Geo. J.L. Pub. Pol’y 19, 21–22 (2022) [hereinafter Siegel, Politics]; Reva B. Siegel, Memory Games: Dobbs’s Originalism as Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance, 101 Tex. L. Rev. 1127, 1175 (2023) [hereinafter Siegel, Memory Games]; Reva B. Siegel, How “History and Tradition” Perpetuates Inequality: Dobbs on Abortion’s Nineteenth-Century Criminalization, 60 Hous. L. Rev. 901, 920 (2023) [hereinafter, Siegel, How “History and Tradition” Perpetuates Inequality]; and Reva B. Siegel, The History of History and Tradition: The Roots of Dobbs’s Method (and Originalism) in the Defense of Segregation, 133 Yale L.J.F. 99, 127–46 (2023) [hereinafter Siegel, The History of History and Tradition]. See also Blocher & Siegel, supra note 20; Reva B. Siegel & Mary Ziegler, Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It, 134 Yale L.J. 1068 (2025) [hereinafter Siegel & Ziegler, Comstockery]; Reva B. Siegel & Mary Ziegler, Abortion’s New Criminalization—A History-and-Tradition Right to Healthcare Access After Dobbs, 111 Va L. Rev. (2025), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4881886 [perma.cc/T8A5-CZ9V] [hereinafter Siegel & Ziegler, Abortion’s New Criminalization]. For earlier work on memory and the Constitution, see, e.g., Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 947, 950–51 & nn.2, 3 (2002).
Appeals to the past, inside and outside the courts, in arguments over the Constitution’s meaning may incorporate history—carefully, selectively, or not at all—and such claims are commonly challenged on historical grounds.²⁷See Siegel, Politics, supra note 26, at 21.
But a claim on the past in constitutional argument is more than a simple historical claim. When a claim on the past appears as an integral element of constitutional argument, that claim on the past typically concerns matters of identity or obligation about what we owe one another as a people, ²⁸Id. at 21 & n.5 (describing “constitutional memory as a form of collective memory forged through constitutional interpretation” and discussing other scholarship that has adopted this definition). On collective memory and identity, see generally Turgut Kerem Tuncel, A Review of the Social Memory Literature: Schools, Approaches, and Debates, 15 Int’l Crimes & Hist. 77 (2014).
as the many opinions arrayed in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA),²⁹Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll. (SFFA), 143 S. Ct. 2141 (2023).
the Court’s recent affirmative action decision, illustrate.³⁰Siegel, Levels of Generality, supra note 15, at 5–6 (discussing the conflict over constitutional memory in SFFA); see Ofra Bloch, Students for Fair Admissions and the Memory Wars, 27 U. Pa. J. Const. L. (forthcoming 2025) (manuscript at 16), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4742160# [perma.cc/3FS4-3QDZ].

Here, we can see a core analytical mistake of the Scalia/Kavanaugh argument that historical approaches to interpretation impose judicial constraint. The claim is premised on the view that history is made of impersonal, objective facts, free of interpretive dispute, on the view that “[h]istory establishes a ‘criterion that is conceptually quite separate from the preferences of the judge himself.’ ”³¹United States v. Rahimi, 144 S. Ct. 1889, 1912 (2024) (Kavanaugh, J., concurring) (quoting Scalia, supra note 14, at 864).

First, positive and descriptive claims on the past in constitutional argument are often an integral part of normative arguments about the identity and obligations of “We the People.” In constitutional argument, claims on the past, whether true, false, or selective, may express group identity of the kind collective-memory scholarship explores or express beliefs about community norms and traditions.³²For collective-memory scholarship, see sources cited supra note 28. For an illustration of how apparently fact-based claims about the past can assert value-based claims about collective identity, see infra Part III.
These claims on the past speak not only to historical facts but also to our collective future. “Constitutional memory is entrenched, yet open and contestable—it is a field of meaning in which we continuously negotiate who we are and what we are to do together.”³³Siegel, Politics, supra note 26, at 22.
As the affirmative action debate illustrates, liberals as well as conservatives advance constitutional memory claims.

Second, claims about the past in constitutional argument legitimate, or discredit, the exercise of power.³⁴Id. at 23.

Third, claims about the past in constitutional argument may openly express value and legitimate authority, but they can also do so indirectly, in the ways they depict the past. Memory claims can invoke the past at a high or a low level of generality. Memory claims at a high level of generality appeal to the principles undergirding tradition and so enable change, while memory claims at a low level of generality focus on particulars in the past that can be employed to entrench law against change. Law stories can misrepresent—or selectively represent—facts of national experience, opening gaps between constitutional memory and constitutional history. Law will then recount the past in ways that (1) reflect and reinforce status inequality, (2) erase memory of dissent, and (3) forge narratives of consensus. These constitutional memories become hegemonic, in virtue of the power of those who endorse and disseminate them.³⁵Berthold Molden, Resistant Pasts Versus Mnemonic Hegemony: On the Power Relations of Collective Memory, 9 Memory Stud. 125, 126 (2016) (“[H]egemony is the ability of a dominant group or class to impose their interpretations of reality—or the interpretations that support their interests—as the only thinkable way to view the world. The dominated groups come to accept [this account] as the natural state of the world.”); id. at 128 (citation omitted) ( “[O]ne discourse is elevated above others . . . because the most powerful group put it there . . . . [H]egemony is built by prioritizing some memories over others according to the specific power constellations of a given society.”).
As I have observed, “[s]ystematic divergence between constitutional memory and constitutional history can legitimate authority by generating the appearance of consent to contested status relations and by destroying the vernacular of resistance.”³⁶Siegel, Politics, supra note 26, at 24.

Fourth, for these reasons, constitutional memory provides a framework for analyzing originalism, as I have elsewhere shown in studies of “originalism’s origins in a backlash to the decisions of the Warren and Burger Courts.”³⁷Siegel, Memory Games, supra note 26, at 1127, 1162; see also Siegel, The History of History and Tradition, supra note 26, at 110 (noting that “Dobbs justifies overruling Roe through methods of interpreting the Fourteenth Amendment that defenders of segregation employed to attack Brown”); Charles W. Tyler, Genealogy in Constitutional Law, 77 Vand. L. Rev. 1713, 1756–57 (2024) (discussing historians who have traced the spread of claims on original intent to the recognition of racial civil rights).
(As historian Eric Hobsbawm has observed, traditions can be “invented” to assert a continuity with an historic past in response to “change and innovation of the modern world.”³⁸Eric Hobsbawm, Introduction: Inventing Traditions, in The Invention of Tradition 1, 2 (Eric Hobsbawm & Terence Ranger eds., 2012); id. at 12 (observing that “invented traditions, so far as possible, use history as a legitimator of action and cement of group cohesion”). Scholars of collective memory and historians understand that claims on the past can serve the present. See Tuncel, supra note 28, at 97.
). Originalism is not simply a value-neutral method of interpreting the Constitution. Originalism is also a political practice with long-term goals including the overturning of Roe.³⁹Siegel, Memory Games, supra note 26, at 1138–69.
In a study of the forms of statecraft and storytelling that the political practice of originalism developed during the Reagan years, I observed: “Executive Branch-appointments politics matter critically to originalism’s authority, as do originalism’s appeals to constitutional memory to legitimate the exercise of public power.”⁴⁰See id. at 1130.

III. Analyzing “History and Tradition” in Dobbs as Constitutional Memory

Claims on the past in constitutional law can take many different forms. For over sixty years, the Supreme Court interpreted the Fourteenth Amendment’s liberty guarantee guided by Justice Harlan’s declaration that tradition was a “living thing.”⁴¹Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting). For substantive due process cases in which the Justices cited this opinion, see Siegel, The History of History and Tradition, supra note 26, at 136 n.156.
For a quarter century, Justice Scalia and Justice Kennedy debated whether the liberty guarantee was best understood as backward-looking or evolving in this way, and Justice Kennedy’s views prevailed in law.⁴²See Siegel, The History of History and Tradition, supra note 26, at 133–44 (observing that “the debate between Justice Kennedy and Justice Scalia was not a debate between a living and a ‘dead’ Constitution, but instead between two expressions of the living Constitution”); Siegel & Ziegler, Abortion’s New Criminalization, supra note 26, at 151–52 nn.276–77 (recounting conflict between Justices Scalia and Kennedy beginning in 1989 in Michael H. and continuing through Glucksberg into Casey and Obergefell).

Justice Scalia’s views are now insurgent. President Trump campaigned on a promise to nominate Justices who would overturn Roe and by 2020 had appointed a new conservative majority⁴³See Siegel, Memory Games, supra note 26, at 1176–78.
to the Supreme Court that revolutionized Second Amendment law in Bruen⁴⁴See N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2129–30 (2022).
and Fourteenth Amendment due process law in Dobbs.⁴⁵See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242–43 (2022).
The Court justified these dramatic shifts in law as faithful to history. In Dobbs, the new majority invoked a 1997 case called Washington v. Glucksberg⁴⁶Washington v. Glucksberg, 521 U.S. 702 (1997).
that expressly recognized the abortion right as within the nation’s history and traditions,⁴⁷Writing for the majority in Glucksberg, Chief Justice Rehnquist explicitly recognized that “the Court’s opinion in Casey described . . . those personal activities and decisions that this Court has identified as so deeply rooted in our history and traditions . . . that they are protected by the Fourteenth Amendment.” Id. at 727; see also id. at 720, 726–27 (mentioning abortion); id. at 720, 724, 726–28 (discussing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992)); id. at 726 (mentioning Roe v. Wade, 410 U.S. 113 (1973)).
holding for the first time that Glucksberg required Roe’s overruling. The Dobbs Court defined the liberties the Fourteenth Amendment protected at a much lower level of generality than prior case law—by counting states that banned abortion in 1868, the time of the Amendment’s ratification⁴⁸Dobbs, 142 S. Ct. at 2252–53 (“By 1868, the year when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening.”).
—and, citing Glucksberg, concluded that the abortion right was “not deeply rooted in the Nation’s history and traditions.”⁴⁹Id. at 2253–54 (emphasis added) (citing Glucksberg, 521 U.S. at 719). Glucksberg repeatedly recognized the abortion right as within the nation’s history and traditions. See supra note 47 and accompanying text. It was expressly drafted to do so and was never interpreted to require Roe’s overruling until the shifts in the Court’s composition produced the Dobbs decision in 2022. For a close reading of Glucksberg that establishes this point, see Siegel & Ziegler, Abortion’s New Criminalization, supra note 26 (Section III.B).
With no apparent irony, the Dobbs Court explained that interpretation with attention to history would prevent the Justices from reading their own “policy preferences” into the Constitution’s liberty guarantee, quoting Glucksberg itself as authority for that proposition.⁵⁰Dobbs, 142 S. Ct. at 2247–48 (quoting Glucksberg, 521 U.S. at 720).
Justice Alito asserted: “[A]ttempts to justify abortion through appeals to a broader right to autonomy and to define one’s ‘concept of existence’ prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.”⁵¹Id. at 2258 (citation omitted) (citing Casey, 505 U.S. at 851).

Dobbs plays “memory games.”⁵²Siegel, Memory Games, supra note 26, at 1148–49.
To legitimate its decision overturning a half-century of cases recognizing the abortion right, the Court repeatedly appealed to the constitutional memory of Brown reversing Plessy v. Ferguson,⁵³Siegel, The History of History and Tradition, supra note 26, at 109–10, 109 n.50.
even as the Court employed a method of interpreting the Fourteenth Amendment—counting state laws in 1868—that the South developed to entrench past practice and defend racial segregation before and after Brown.⁵⁴Id. at 109–12.

There are many other ways that the Supreme Court’s appeal to historical facts in Dobbs hid values that the Court avoided openly expressing. Here are a few more examples illustrating constitutional memory at work in Dobbs.

First, as historians objected, the Court’s choice to base its decision on a count of abortion bans in 1868 was not a neutral framework, but instead a value-based and outcome-biasing choice of standards. At the Founding and for long after, common law and custom allowed abortion until quickening (between weeks sixteen to twenty-five in pregnancy)—a standard not unlike viability.⁵⁵Siegel, How “History and Tradition” Perpetuates Inequality, supra note 26, at 923 & n.83, 924–25, 925 nn.93–95; see also Brief for Amici Curiae American Historical Organization of American Historians in Support of Respondents at 5–14, Dobbs, 142 S. Ct. 2228 (No. 19-1392) [hereinafter Dobbs Amicus Brief] (discussing quickening).
Focusing on the statutes banning abortion at mid-century marginalized beliefs about quickening at the Founding, making it much easier for the Court to characterize abortion as outside American traditions, even as quickening standards persisted in law and in custom long after the bans were enacted.⁵⁶See Siegel, How “History and Tradition” Perpetuates Inequality, supra note 26 at 924–25; Dobbs Amicus Brief, supra note 55, at 18, 20, 27. Professor Aaron Tang has shown that quickening standards persisted in many states that the Dobbs opinion reports as banning abortion as of 1868. See Aaron Tang, After Dobbs: History, Tradition, and the Uncertain Future of a Nationwide Abortion Ban, 75 Stan. L. Rev. 1091, 1098–99 (2023).

Second, the Court’s choice to base the Dobbs decision on a count of abortion bans in 1868 reflected a value judgment about the historical record in an entirely different sense. An historians’ brief presented the Court with evidence that the nineteenth-century campaign to criminalize abortion was tainted with “[c]onstitutionally [i]mpermissible” and “[d]iscriminatory [m]otives”—that the interest in protecting unborn life was “mixed” with concern about enforcing women’s maternal and marital duties and increasing the birthrate of Protestant families to preserve the ethno-religious character of the nation.⁵⁷Dobbs Amicus Brief, supra note 55, at 18–26; see also Siegel, How “History and Tradition” Perpetuates Inequality, supra note 26, at 920–32.
No matter their number, could statutes enacted in response to a campaign of this kind guide interpretation of the Constitution’s liberty guarantee? Justice Alito emphatically rejected the historians’ mixed-motive account of the campaign with a sole-motive objection: “Are we to believe that the hundreds of lawmakers whose votes were needed to enact these laws were motivated by hostility to Catholics and women?”⁵⁸Dobbs, 142 S. Ct. at 2256.
He answered: “There is ample evidence that the passage of these laws was instead spurred by a sincere belief that abortion kills a human being.”⁵⁹Id. (emphasis added).
To support this claim, Justice Alito cited judicial decisions only, none of which addressed the questions about the campaign to ban abortion that the historians raised.⁶⁰Id.
Justice Alito offered nothing to rebut the considerable evidence in the historians’ brief or the publications of abortion-ban advocates and surviving legislative records that support the historians’ claims, such as this much-discussed 1867 Ohio Senate Report.⁶¹See Dobbs Amicus Brief, supra note 55, at 18–26 (reviewing advocates’ arguments); Siegel, Memory Games, supra note 26, at 1187–91; see also Siegel, How “History and Tradition” Perpetuates Inequality, supra note 26, at 923–29 (reviewing advocates’ arguments and legislative sources); Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 300–04 (1992) (quoting primary sources from the records of the nineteenth-century campaign to criminalize abortion).
But he did make a threat. In a remarkable footnote, Justice Alito suggested that if abortion-rights supporters continued to raise questions about the mixed-motives of nineteenth-century abortion-ban advocates, he might join Justice Thomas in raising eugenics allegations about abortion-rights supporters—revealing identifications with historical actors across the centuries.⁶²See Dobbs, 142 S. Ct. at 2256 & n.41. For commentary on this passage, see Melissa Murray, Making History, 133 Yale L.J.F. 990, 1002–10 (2024); and Reva B. Siegel & Mary Ziegler, Abortion-Eugenics Discourse in Dobbs: A Social Movement History, 2 J. Am. Const. Hist. 71, 86–90 (2024).

Third, the Court’s focus on protecting unborn life shaped its interpretation at other points in the decision. Justice Alito rejected the dissenters’ argument that the majority had adopted a history-and-tradition standard that threatened cases from the right to contraception to the right to marry. The majority insisted that its opinion did not “call[] into question Griswold, Eisenstadt, Lawrence, and Obergefell,”⁶³Dobbs, 142 S. Ct. at 2280.
emphasizing that “[t]he exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a ‘potential life,’ but an abortion has that effect.”⁶⁴Id. at 2261; see also id. at 2280 (“[R]ights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed ‘potential life.’ ”).
If we are to credit the majority’s repeated assertion that it had not weakened the authority of these other substantive due process cases, then its decision about abortion would seem to have rested exclusively or at least primarily on moral concerns about protecting life.

Fourth, and perhaps most obviously, the Court’s choice to base the Dobbs decision on a count of abortion bans in 1868 reflected a value-judgment about women. By justifying its decision to reverse a half century of law recognizing women’s authority to make decisions about pregnancy with a count of state abortion laws in 1868, the Court was not simply finding facts—it was expressing judgments about women’s roles. The Court tied the interpretation of the Fourteenth Amendment’s liberty guarantee to statutes that coerced childbirth, enacted by an electorate from which women and people of color were excluded. Why? The Court never claimed that focusing on 1868 was necessary to interpret the liberty guarantee (or to define tradition): Glucksberg did not employ the 1868 standard, and we have no evidence that the ratifying generation drew any connections between then-existing abortion bans and the Constitution.⁶⁵See supra text accompanying notes 46–50 (discussing how Dobbs changed application of Glucksberg). Clarke Forsythe, a long-time opponent of Roe, observes that “no data—no legislative history, no committee reports, no speeches, no newspaper articles, no memoranda, no personal papers, no letters—have ever been cited to suggest that the sponsors mentioned abortion or the unborn child at any time during the discussion of the 14th Amendment.” Clarke D. Forsythe, The 14th Amendment’s Personhood Mistake, Nat’l Rev. (Dec. 21, 2023 3:43 PM), https://www.nationalreview.com/magazine/2024/02/the-14th-amendments-personhood-myth [perma.cc/6V8Y-9J9E].
In short, by counting states banning abortion in 1868, the Court adopted an unexplained standard that predictably imported antidemocratic criteria into the Constitution’s contemporary interpretation. As I responded to Dobbs the day after the decision, “[t]he justices’ efforts to hide their views about abortion in a story about the Constitution’s history and traditions reveals to us their view of women.”⁶⁶Reva Siegel, The Trump Court Limited Women’s Rights Using 19th-Century Standards, Wash. Post (June 25, 2022), https://www.washingtonpost.com/outlook/2022/06/25/trump-court-limited-womens-rights-using-19th-century-standards [perma.cc/DW4B-2JHR].
Cary Franklin explained that “outcomes in the Court’s new history-and-tradition cases are often driven by hidden, twenty-first-century judgments about equality.”⁶⁷Cary Franklin, History and Tradition’s Equality Problem, 133 Yale L.J.F. 946, 949 (2024). Melissa Murray reads the history-and-tradition decisions of the Court’s 2021 Term as “privileg[ing] rights that are ‘coded’ male” and “prioritiz[ing] the exercise of constitutional rights by men.” Melissa Murray, Children of Men: The Roberts Court’s Jurisprudence of Masculinity, 60 Hous. L. Rev. 799, 804 (2023) (emphasis omitted).

IV. Democratizing Constitutional Memory

In Dobbs, the Justices identified with originalism and the conservative legal movement appealed to “history and tradition”⁶⁸See supra notes 48–49 and accompanying text (discussing the new majority’s reinterpretation of Glucksberg).
as they rewrote bodies of constitutional law. They located “constitutional authority in imagined communities of the past, entrenching norms, traditions, and modes of life associated with old status hierarchies,” and presented “contested value judgments as expert claims of law and historical fact to which the public owes deference.”⁶⁹Siegel, Memory Games, supra note 26, at 1196.
On their account, this was the neutral separation of law and politics⁷⁰See, e.g., supra note 19 and accompanying text.
: modern constitutional law had violated the nation’s history and traditions, and upheaval in the law merely restored constitutional order.⁷¹See Siegel, Memory Games, supra note 26, at 1130 (observing that “originalists who are identified with the conservative legal movement have pursued constitutional change: through specialized judicial appointment practices designed to achieve movement-party goals and through constitutional memory work that can justify a new court’s doctrinal innovations as restoring the Framers’ Constitution”).

As the Court appealed to tradition to overturn a constitutional right that the public strongly supported,⁷²See Public Opinion on Abortion, Pew Rsch. Ctr. (May 13, 2024), https://www.pewresearch.org/religion/fact-sheet/public-opinion-on-abortion [perma.cc/9N7L-V39D] (demonstrating that, in 2024, sixty-three percent of Americans believed that “abortion should be legal in all or most cases”).
public confidence in the Court plummeted.⁷³See Adam Liptak, Confidence in U.S. Courts Plummets to Rate Far Below Peer Nations, N.Y. Times (Dec. 17, 2024), https://www.nytimes.com/2024/12/17/us/gallup-poll-judiciary-courts.html [perma.cc/RJ73-HQSM].
Yet the Court’s display of erudition asserted a certain authority. There was a sense among many of Dobbs’s critics that history was on the Court’s side—and that the law must be emancipated from the grip of the past, from the grip of inequality and prejudice.

The dissenting Justices in Dobbs objected that the conservatives’ turn to the past was not “scrupulously neutral,”⁷⁴Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2328 (2022) (Breyer, Sotomayor & Kagan, JJ., dissenting).
but “instead taking sides”⁷⁵Id.
and legitimating many forms of inequality.⁷⁶Id.
They called for reviving interpretive practices that prevailed before the conservative insurgency and interpreting the Constitution’s guarantees at the level of generality in which the text is written so that “applications of liberty and equality can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents.”⁷⁷Id. at 2326.
A growing number of state-court judges interpreting their own constitutions have explicitly and implicitly challenged the Supreme Court’s reasoning in Dobbs, some with remarkable bluntness.⁷⁸For a sample of an early, prominent critique of Dobbs’s history-and-tradition analysis, see Allegheny Reproductive Health Center v. Department of Human Services, 309 A.3d 808, 981–88 (Pa. 2024) (Wecht, J., concurring).
“Failure to distinguish between principles and application of those principles would hold constitutional protections hostage to the prejudices of the 1890s.”⁷⁹Planned Parenthood Ass’n of Utah v. Utah, 554 P.3d 998, 1028 (Utah 2024) (evaluating the constitutionality of Utah’s abortion ban under the state constitution).
“The reality is that ‘individuals’ did not draft and enact the North Dakota Constitution. Men did.”⁸⁰Order on Defendant’s Motion for Summary Judgment ¶ 40, Access Indep. Health Servs., Inc. v. Wrigley, No. 08-2022-CV-01608 (N.D. Dist. Ct. Sept. 12, 2024).

There is absolutely no reason for liberal jurists to cede appeal to principle; at the same time, there is absolutely no reason for them to cede the past to judicial conservatives. Liberals’ instinct to reason about constitutional law at a high level of generality exacts certain unappreciated costs, contributing in its own way to the gap between constitutional memory and constitutional history. The appeal to principle foregrounds Founders and judges and tends to showcase white men as the primary law-givers in the American constitutional order, even as the judges’ claims of principle build on the arguments of unrecognized Americans, the governed rather than the governors. To be sure, liberal jurists invoke the past as a site of constitutional injury, for example, in the fight over affirmative action.⁸¹See supra notes 31–33 and accompanying text.
But it is far less common for judges to turn to the past to honor the contributions of ordinary Americans to the making of constitutional law.⁸²Serena Mayeri, The Critical Role of History After Dobbs, 2 J. Am. Const. Hist. 171, 201 (2024). This is true even among legal academics, although not those who work at the intersection of legal history and constitutional law. See, e.g., id. at 272 (“Asking the right questions of the past can help us to understand and to realize the enduring promise of our constitution as a work in progress of which we are all the authors.”).

I have long been interested in examining the participation of the governed in the making of our constitutional law,⁸³See, e.g., Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 947 (2002); Siegel, Equality Talk, supra note 13; Reva B. Siegel, Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de Facto ERA, 94 Calif. L. Rev. 1323 (2006); Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191 (2008); Reva B. Siegel, Community in Conflict: Same-Sex Marriage and Backlash, 64 UCLA L. Rev. 1728 (2017) [hereinafter Siegel, Community in Conflict]; Siegel & Ziegler, Comstockery, supra note 26.
forms of participation absolutely essential for the Constitution’s continuing authority yet rarely recognized from the internal perspective of the law. Because of these conventions, constitutional memory—the nation’s past in law—often diverges from constitutional history. But we can break these conventions and recount in law the stories of Americans whose struggles helped change the meaning and application of the nation’s constitutional principles, as Justice Thomas does when he quotes Frederick Douglass.⁸⁴For examples of these citations to Douglass’s work, see Siegel, Politics, supra note 26, at 52 nn.162–64.
Interventions of this kind may change who is seen to have the authority of a constitutional lawmaker and, at the same time, change our understanding of our constitutional commitments.⁸⁵See Siegel, Politics, supra note 26; id. at 24 (showing how erasure of arguments for women’s enfranchisement makes “constitutional doctrines about liberty and equality in the family appear to lack historical antecedents”).

Just as advocates making claims on constitutional memory can look beyond lawmakers to include those whose struggles were responsible for making our law, advocates can look beyond the text of statutes for expressions of the nation’s commitments. The Court’s recent claims on history and tradition count state laws as evidence of the nation’s traditions for purposes of interpreting the Fourteenth Amendment’s liberty guarantee. But what should count as evidence of a “tradition” for these purposes? The answer is turtles (values) all the way down, and so presents an opportunity to counter constitutional memory with constitutional memory. Are laws enacted in 1868 the most “democratic” measure of a nation’s traditions?⁸⁶See United States v. Rahimi, 144 S. Ct. 1889, 1912 (2024) (Kavanaugh, J., concurring) (suggesting that the historical method is a neutral and democratic one).
Why determine tradition by counting laws enacted by an electorate when only a minority of adults could vote? Why not democratize constitutional memory by including the perspectives of those we now recognize as equal members of the community but who then had no voice in lawmaking?⁸⁷See Siegel & Ziegler, Comstockery, supra note 26, at 1142–43.
This example illustrates how commonly the law employs conventions to recount the past—perhaps first among them that Americans have implicitly, virtually, or constructively consented to lawmaking.⁸⁸See Siegel, Memory Games, supra note 26, at 1198–99 (discussing the perspectives of originalists on consent); see also Siegel, Community in Conflict, supra note 83, 1740–45 (discussing consensus constitutionalists who view judicial review as a majoritarian, rather than counter-majoritarian, institution that tends to reflect public opinion).
The prevalence of these conventions presents opportunities to democratize memory in a variety of contexts.

What if, in addition to legislative history, we consider how law may grow out of a resistance to other law, as the Reconstruction Amendments sought to remedy injuries inflicted by the law of slavery? Cases interpreting the Reconstruction Amendments do not now acknowledge how enslaved Americans and the abolitionist movement protested slavery as an institution that coerced sex and reproduction and deprived the enslaved of control over their intimate and family lives—forms of coercion that persisted in emancipation.⁸⁹Lyle Cherneff, Note, Remembering In re Turner: Popular Constitutionalism in the Reconstruction Era, 133 Yale L.J. 2443, 2519 (2024) (reflecting on the constitutional stakes of recording “the reality of slavery’s sexual and familial violence”).
There is no reason to sustain this erasure in constitutional memory, especially when it has such immediate implications for the Amendments’ interpretation—an argument Peggy Cooper Davis first made in the 1990s⁹⁰ Peggy Cooper Davis, Neglected Stories: The Constitution and Family Values 5 (1997).
and that is once again growing since Dobbs offered a count of abortion bans in 1868 to suggest that the Fourteenth Amendment’s liberty guarantee had nothing to say about reproductive freedom.⁹¹Peggy Cooper Davis, A Response to Justice Amy Coney Barrett, Harv. L. Rev. Blog (June 14, 2022), https://blog.harvardlawreview.org/a-response-to-justice-amy-coney-barrett [perma.cc/SZ6Q-FPBW]; Michele Goodwin, Opportunistic Originalism: Dobbs v. Jackson Women’s Health Organization, 2022 Sup. Ct. Rev. 111, 181 (arguing that, in Dobbs, “the Court strips the impetus for the Reconstruction from the Constitution” contrary to its supposed originalist commitments).

Reasoning this way, we can see that “Americans have long sought liberty to control their intimate and family lives—claims that animated enslaved people’s quest for freedom and for equal citizenship, as well as women’s centuries-long quest for the vote.”⁹²Siegel & Ziegler, Comstockery, supra note 26, at 1179 & nn.570–71 (citing sources).
Comstock laws, enacted in 1873 and copied in the states, banned as obscene the mailing of materials and communications that would enable contraception and abortion. This intensifying enforcement regime provoked growing resistance and ultimately widespread public alienation and backlash.⁹³Id. at 3003–05.
As Mary Ziegler and I have written, “generations of Comstock critics brought to bear new understandings of democracy, free speech, liberty, and equality in helping change obscenity doctrine, even if federal judges barely spoke of the postal statute’s critics.”⁹⁴Id. at 3111.
From this vantage point, we can see that there “is both law and national experience at the root of substantive due process cases, even if the Justices deciding [them] scarcely adverted to it.”⁹⁵Id.
Women who called for abortion rights on the Nineteenth Amendment’s fiftieth anniversary were making freedom claims that reached back before the Fourteenth Amendment’s ratification; but none of this was intelligible in the writing of Roe.⁹⁶Siegel, Politics, supra note 26, at 43–44. On antebellum claims, see generally id. at 35–39.

“[B]y expanding the evidence of tradition we examine, we may arrive at fundamentally different understandings of freedom’s meaning.”⁹⁷Siegel & Ziegler, Comstockery, supra note 26, at 1180.
When we democratize constitutional memory—consider the views of lawmakers and the people they governed, including those denied voice—it is plain that American understandings of liberty include freedom from coercion in sex and reproduction, in bearing children, and in forming family.

* Nicholas deB. Katzenbach Professor of Law, Yale University. For excellent research assistance, I thank Jenna Bao, Gila Glattstein, Katie Kroft, Naji Thompson, and Emiliano Vitaliani