History and the constitution

Sajó argues that constitutions, rather than being forward-looking, ‘reflect the fears originating in, and related to, the previous political regime’. Exploring this thesis in reference to contemporary constitutions drafted as part of peace-making or regime change processes, I argue that not only are constitutions shaped by historical circumstances, but that they create and utilise historical narratives in pursuit of political goals. First, constitutions may embrace or reject history in pursuit of constitutional change. Second, in some cases history is explicitly invoked to justify particular constitutional provisions. Third, a number of constitutions mandate the teaching of history so that the constitutional text ensures the continuation of certain historical narratives. Finally, I consider how judges interpret constitutional texts in an historical context. Considering the increasing use of transnational law, I question what role historical references play in constitutional law.