MJH: Content neutral definitely means ahistorical, and one of its most important characteristics is its ahistoricity. Why is content neutral almost always ahistorical? Because it is an attempt to assert that we're not supposed to look at how we got here, but we're simply supposed to accept the current distribution of privilege as given. Anybody who attempts to go behind the current distribution of power and privilege is said to be non-neutral. Anybody who attempts to go behind the current distribution of power and privilege to look at the history of how we got here then is said to be non-neutral. History itself is then non-neutral in this sense. 

KAS: Yes—I mean, history is a narrative, someone's narrative, so how could it be neutral? The refusal of law, or the court, to recognize a particular version of past events, or the past at all, is clearly dangerous to anyone or any group that needs to draw on those events for survival. But is survival, in America, dependent on this kind of official memory? I mean, is there some kind of tension between remembering and forgetting—for individuals and communities? What I'm interested in is how you would propose we use history as thinkers, as legal thinkers, or cultural critics—or I suppose, judges—to transform the current situation, which is certainly informed by history. How do we use history, but not be imprisoned at some level in history? How do we get in, and be able to get out of it? 

MJH: It seems to me there are two separate steps. The first step, I think, is a cultural orientation. The second is a philosophical problem. The first, the issue of the cultural orientation, is this: I believe that virtually every field of American thought, American cultural theory, American philosophy, can be substantially improved by taking the history of its underlying concepts, norms, methodologies, approaches, perspectives, and seeing them as shifting paradigms, shifting historical perspectives. Almost all of American cultural theorizing is lacking, to some greater or lesser extent, in this historical perspective. So, given the cultural situation of America, we are saying in jurisprudence or in legal philosophy, the historical dimension is almost always ignored, in which people talk about one right answer, as if it's not historically bounded in any way. It would be an enormous improvement to have a historical perspective on the development of the governing concepts and ideas in almost every American theoretical discipline. 

Now the philosophical question is, what happens when you bring history in? How can you ever get out of it? Isn't the historical mindset deterministic? Doesn't the historical mindset inevitably lead to creating laws of history that then produce sort of rigid and mechanical views of our being imprisoned by history, making self-actualizing and self-activating behavior impossible? 

I don't believe that a proper understanding of the role of history in thinking about culture and philosophy and values creates this sense of imprisonment. I know that many people say that the problem of history is that it creates this sense of fatalism and determinism and so on. I have quite a different view. I've always felt that the study of history is a liberatory experience, that it in fact makes it possible to see the paths we've chosen. The accidents of history, its contingency. The arbitrariness of history and its movements. How random are so many things, how so often potential is foregone. History also has an inspiration and aspiration aspect to see those moments, all too few, of the soaring of the human spirit and the possibilities of human creation, both social and intellectual.  

So I don't have the feeling that history presents a problematic, as I know many people do. I have the feeling that history encourages one to see the multivariant possibilities in human institutions and thought.