What’s Past is Prologue: Democracy in the Age of Originalism

Abstract

This essay reviews three recent books grappling with the history and meaning of US constitutional democracy, written in a time when an originalist, conservative Supreme Court serves as the Constitution’s final arbiter. Democracies in America: Keywords for the Nineteenth Century and Today, edited by D. Berton Emerson and Gregory Laski, and The Nation That Never Was: Reconstructing America’s Story, by Kermit Roosevelt III, strive to appropriate originalist methods toward progressive ends. By contrast, Cass R. Sunstein’s How to Interpret the Constitution evinces a pragmatic skepticism of any such historically bound modes of interpretation. The tension between these approaches, I suggest, has shaped US constitutional discourse since the nineteenth century.