Time & Perspective Quote by Cass Sunstein

Sunstein’s line is a lawyerly ice bath: it drains the moral heat from a question people assume is already settled. By insisting "as a matter of history", he smuggles in a particular kind of authority - not ethical, not aspirational, but archival. The key move is the passive construction: "was not understood". Understood by whom, exactly? Ratifiers? Judges? The public? That ambiguity isn’t a bug; it’s the strategy. It lets the speaker invoke “original” meaning without having to pick one messy, contested historical audience.

The specific intent reads as a caution sign aimed at modern constitutional arguments: don’t pretend the Fourteenth Amendment’s drafters and early interpreters were secretly imagining Brown v. Board. Sunstein, a prominent legal pragmatist, often treats history as one input among many; here, he’s marking a boundary between what the text came to do and what it was initially thought to do. That distinction matters because it destabilizes a common rhetorical shortcut: if segregation is unconstitutional now, then it must have always been.

The subtext is bracing: legitimacy in constitutional law can’t rest only on original expectations, because original expectations were frequently cramped, self-serving, and compatible with Jim Crow. The context is the long fight between originalism and “living Constitution” approaches. By conceding history’s limits, the sentence quietly defends a different kind of legitimacy: constitutional principles that grow beyond their authors, not because judges are unmoored, but because the nation’s commitments were always larger than its immediate willingness to enforce them.