Constitutional Retconning: History in Judicial Reasoning and Changes in Constitutional Meaning

Abstract

Retroactive continuity or “retconning” describes a situation where the established history or continuity of a narrative is adjusted or reinterpreted to align with new developments in the story. The concept was popularized in reference to comic books and television shows. This article develops and applies a novel concept, constitutional retconning, to examine how the courts have relied on retconning as an interpretive tool when redefining the meaning or scope of constitutional provisions. I explore the implications of constitutional retconning by analyzing three important instances where the courts have established a reimagining of history or new understandings of historical facts. Because retconning concerns historically established narratives about the constitution, constitutional retconning can have profound implications for changes in constitutional meaning and our understanding of the development of the constitution.