In his forthcoming book, The Scales of Memory: Constitutional Justice and the Burdens of the Past, Justin Collings, Associate Dean for Research and Academic Affairs and Professor of Law at BYU Law, considers the role that memory plays in constitutional interpretation by posing the question, “Does memory drive judicial outcomes, merely justify them, or do some of both?” Introducing a framework of “parenthetical and redemptive memory,” Collings explores this question by examining how differing modes of memory impact jurisprudence and proposes that the lens through which courts view historical evil shapes their constitutional identities.
“For most of human history and in most of the world, constitutional courts didn’t exist,” says Collings. “It wasn’t until after the Second World War that constitutional justice spread throughout the world. Many constitutional courts wouldn’t exist if there hadn’t been a regime of terror beforehand.” Collings examines constitutional responses to the regimes of Nazism in Germany, apartheid in South Africa, and slavery in the United States, through the parenthetical and redemptive modes of memory. “The parenthetical mode views the evil era as exceptional, a baleful aberration from an otherwise noble and worthy constitutional tradition,” he writes. “In contrast, the redemptive mode does not rely on continuity with a deeper past but calls for a future stemming from a stark, complete, and vivid rupture.” Collings argues that parenthetical memory has been predominant in the US, redemptive memory has been predominant in South Africa, and both have played a role in German jurisprudence.
According to Collings, both modes of memory are needed. “Justice is a mnemonic act,” he says, “but it’s also a balancing act.” Collings suggests that without any semblance of the parenthetical, the basis for constitutional unity becomes unclear. “What holds South Africa together in the absence of aparthied?” he asks. “If Germany is only the antithesis of Nazism, what is it that holds it together?” Delving into United States jurisprudence, Collings proposes that parenthetical justice has delayed a full reckoning of past ills. “There are ways in which we are willfully amnesiac,” he says. “The longer such reckoning is delayed, the more difficult it becomes.”
Collings regards his book as a call to take seriously the problems of the past without jettisoning constitutional tradition. “Constitutions are crucially important, but they can’t solve every problem,” he says. “There are problems that must be fixed through political will and action, not just by courts deciding cases or interpreting constitutions. We can confront our past, take it seriously, and do things in the present to respond to and fix harm that was done.”
Justin Collings is a scholar of constitutional law, comparative constitutional law, and constitutional history. His first book, Democracy’s Guardians: A History of the German Federal Constitutional Court, 1951-2001, was published with Oxford University Press in 2015. The Scales of Memory: Constitutional Justice and the Burdens of the Past is scheduled to be published in the United States in February 2021.