Constitutional Futurisms

How do we reckon with the past? The Supreme Court’s recent embrace of originalism as a mode of constitutional analysis relies almost exclusively on a view of history and tradition that would bind us to an understanding of principles and ideals that legitimized the exclusion of minority voices. Cases such as New York State Pistol and Rifle Ass'n v. Bruen use flavors of originalism as a framework to define rights and governmental powers through their historical antecedents, but this broad standard of interpretation is notably absent in the Court’s recent discussions of histories and traditions of racism in the United States. In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Court instead relies on an ahistorical framing of equal protection as colorblindness.

This selective history ignores both the social context of cases such as Plessy v. Ferguson and Brown v. Board of Education, and the conceptual origins of affirmative action itself. This results in a vision of a colorblind present and future that is silently constrained and controlled by racisms of the past. Building on Professor Bennett Capers’s work on Afrofuturism and Professor Paul Gowder’s Constitutional Sankofa, I advance a new, futurist methodology of constitutional interpretation—one that incorporates a plurality of histories and traditions, and imagines alternative futures of race and the law.