A Century of Lost Time: 1865–1954

This chapter traces the arc of the U.S. Supreme Court’s engagement with the memory of slavery between the end of the Civil War and the Court’s decision in Brown v. Board of Education. The chapter highlights how, across multiple generations of justices, the Court’s mnemonic jurisprudence was dominated by the parenthetical mode. The Court treated slavery as a parenthetical aberration from the American constitutional tradition, and it treated the post-Civil War constitutional amendments as narrow responses to that aberration. On the whole, the Court construed the new amendments in light of the original constitutional structure, rather than the reverse. Eventually, in cases like Plessy v. Ferguson, the parenthetical mode took the form of willful forgetting—a resumption of the relevant evil in altered guise.

Chasing Rainbows: 2005–2020

This chapter highlights how the Constitutional Court of South Africa has engaged with the memory of apartheid since 2005. It shows how many of the patterns of earlier years persisted—aggressive invocations of apartheid in cases of criminal law or criminal procedure, or when the political stakes were low, but more reticence when confronting the government or applying socio-economic rights provisions. But there was a definite sea change as the Court increasingly confronted the clientelism, cronyism, and corruption that had become endemic to uninterrupted single-party rule. In 2016, the Court dramatically invoked the memory of apartheid to underwrite its decision requiring President Jacob Zuma and his abettors to repay the millions spent from the public treasury on a “security upgrade” to the president’s private residence in Nkandla. The chapter concludes by noting the problematic relationship between constitutional justice and collective memory, and describing how the Court, although it recognizes the problem, nonetheless remains committed to adjudicating in the present by the light of the past.

Conclusion: Memory in the Balance

This conclusion takes stock of the preceding chapters. It asks whether courts should invoke the memory of historical evil and, if so, how. It summarizes the virtues, defects, and dangers of the parenthetical and redemptive modes of memory. The redemptive mode has the virtue of taking the evil past seriously and intervening aggressively to redress its legacies. But it runs the risk of underwriting judicial activism, undermining the rule of law, promoting a sense of exceptionalism, and attaining a status of permanent exception. The parenthetical mode, by contrast, has the virtue forging ties to a deeper past and promoting a sense of normalcy. But, when applied too early and too often, it fails to take the evil past seriously and cure its lingering influence. The chapter ultimately argues that a hybrid redemptive-parenthetical approach, in which the redemptive mode takes temporal and substantive precedence, is the most desirable.

South Africa’s First Constitutional Court: 1995–2005

This chapter explores how the Constitutional Court of South Africa invoked the memory of apartheid during its first decade of operation. It shows how the Court did so frequently and aggressively—at least in some contexts. Whereas the Court discussed apartheid eloquently and at length when it was sweeping away residual apartheid laws or otherwise advancing positions (such as abolishing the death penalty) that the ruling ANC government was likely to support, the justices were much more reticent when it came to invoking apartheid to confront the government itself. And in the context of enforcing positive constitutional rights, the Court was more likely to invoke apartheid memory to underscore the magnitude of the government’s task than to chide the government for failing to discharge it.

After Brown

This chapter traces the U.S. Supreme Court’s mnemonic jurisprudence from Brown v. Board of Education to the present. It shows how, despite occasional instances of redemptive memory—especially during the Warren Court era (1953–1969)—the parenthetical mode of memory continued to predominate. The chapter shows how debates over the legacy of slavery and segregation gradually shifted into debates over the legacy of Brown. Anti-classification readings of Brown have been underwritten by narratives of parenthetical memory, whereas anti-subordination readings of Brown have relied on narratives of redemptive memory. The debates have been most poignant in the context of affirmative action and other race-conscious remedies for de jure or de facto race discrimination. In recent years, the parenthetical mode has once again gained the upper hand.

Introduction

This chapter introduces the topic of the book, which is how constitutional courts invoke historical evil as a reference and an aid in constitutional interpretation. The chapter sets forth the two principal modes by which courts do so: the redemptive mode, which treats the evil past as an aversive reference point against which the new constitutional order must aggressively define itself; and the parenthetical mode, which treats the evil past as an aberration from an otherwise noble tradition. It also discusses variations on these modes, as well as hybrid mergers of them. The chapter indicates how American mnemonic jurisprudence has tilted toward the parenthetical mode, South African toward the redemptive, and German toward a hybrid. The chapter also highlights the relationship of constitutional memory to topics such as constitutional identity, constitutional faith, and transitional justice.

After Hitler: 1951–1975

This chapter explores the German Constitutional Court’s engagement with the memory of Nazism in the first quarter century of the Court’s operation. The chapter shows how the Court came to identify itself, internally and externally, as an overtly anti-Nazi institution. It highlights how the Court construed the postwar German Basic Law as a fundamentally anti-Nazi document and the basis of an anti-Nazi state. The most dramatic case in this regard is the Court’s Civil Servants judgment of 1953, which is discussed at length. The chapter also explores the mnemonic backdrop to the Court’s landmark fundamental rights judgments of the late-1950s. The chapter concludes by discussing the Court’s 1975 abortion judgment, which controversially invoked the memory of Nazism to explain why the right to life had a different valence in Germany than in other democratic states, and why the German Constitution accordingly required the state to protect unborn life throughout the duration of pregnancy.

Forever in Hitler’s Shadow? The Court since 1975

This chapter highlights the German Constitutional Court’s mnemonic jurisprudence in the modern era. It shows how the Court has continued to invoke the Nazi era, and the collapse of the Weimar Republic that preceded it, as key reference points in constitutional adjudication. It stresses that the Court has continued to strike a balance, or forge a hybrid, between the parenthetical and the redemptive modes of memory. It notes that the redemptive mode sometimes leads to a form of exceptionalism. This is most striking in the context of Nazi-related speech. The Court has held that, because the Basic Law as a whole must be understood as a counter-proposal to Nazism, Nazi-related speech is partially exempted from general constitutional protections of speech and opinion. The chapter also suggests that the Court has sometimes paid more attention to the Constitution’s prehistory than to the Federal Republic’s lived experience under the Basic Law. The chapter ends by noting that in recent years, the Court has begun to show more sensibility to its own (and the Constitution’s) historicity.