Foreword: The History of the Constitution is Our Future

As constitutional interpretation becomes rooted ever more deeply into the past the Constitution seemingly has less and less to say about our present. It seems to offer little principled direction for navigating what many describe as a constitutional crisis. On questions ranging from birthright citizenship and territorial acquisition to aggressive federal immigration enforcement, executive intervention beyond U.S. borders, and the “history and tradition” of annexed territories such as Hawai’i, the Constitution’s familiar sources of authority and traditional narratives seem to falter.&nbsp;These domains appear to tread into empty constitutional landscapes and newly discovered territory.&nbsp;&nbsp;<br>Scholars have increasingly traced this backward-looking orientation to conservative legal movements of the last half century. But the impulse to seek constitutional meaning in the past is not new. Long before the Supreme Court embraced originalism, and long before the modern turn to “history and tradition,” jurists and scholars assumed that the Constitution could not be understood apart from its origins and development.&nbsp;Constitutional meaning was thought to emerge from historical inquiry. The question, then, was not whether constitutional interpretation should engage with the past, but&nbsp;<i>which</i>&nbsp;past—and through what historical method.&nbsp;<br>This Foreword argues that our present constitutional impasse stems, at least in part, not solely from excessive attention to the past but from fixation on a particular&nbsp;<i>kind</i>&nbsp;of past. Modern constitutional theory, I suggest, has been increasingly bounded by what scholars in the historical and social sciences call a methodological nationalism.&nbsp;By nationalism, I do not mean to invoke familiar federalism debates.&nbsp;Nor do I use the term nationalism as a pejorative or a critique of those whose research centers the United States and its founders.&nbsp;<br>Rather, I seek to draw attention to a shared theory of the Constitution as the legal expression of a bounded people, unfolding within a stable territorial space, and progressing through a coherent national narrative over time. Within this account, constitutional history exalts moments of founding, amendment, and judicial interpretation, resting on the premise that the nation sprung, whole cloth, from those moments.&nbsp;This account presses to the periphery histories that fall outside the modern nation-state—including, for example, the movement and establishment of borders, the acquisition and governance of new lands and peoples, and processes of development that led to stable borders and the presumed homogeneity of institutions, peoples, and laws over time.&nbsp;<br>This Foreword recovers an alternative approach to constitutional history, one developed by the founders of American history and since largely abandoned, but once central to constitutional thought. Because these earlier methods developed before the consolidation of a stable nation, they did not take the modern nation-state as their starting point. Instead, they examined how the Constitution was used to produce the nation itself: to draw and redraw borders, to acquire and govern territory, to organize and govern non-subject populations, to determine the terms of political membership, and to authorize the projection of power across the continent and beyond.<br>By centering a constitutional history that unsettles the presumption of timeless nationalism, this Foreword shows that many of the most pressing constitutional controversies are not beyond the reach of the Constitution but are, instead, at its core.