The Modern Law Library

‘The Originalism Trap’ author wants to see originalism dead, dead, dead

Originalism is the ascendant legal theory espoused by conservative legal thinkers, including the majority of U.S. Supreme Court justices. But far from being an objective framework for constitutional interpretation, says author and attorney Madiba K. Dennie, its true purpose is to achieve conservative political aims regardless of the historical record.

In The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back, Dennie traces the roots of originalism as a legal theory back to Brown v. Board of Education of Topeka, though the Supreme Court rejected the arguments in the 1954 case.

Its adherents argue that the meaning of the Constitution must solely be determined by “the original public meaning of the Constitution at the time it was drafted,” and that there is a discernible correct answer to what that meaning would have been.

The theory gained popularity in the 1980s, with the late Robert Bork and Justice Antonin Scalia as two influential proponents. Scalia famously said the Constitution is “not a living document. It’s dead, dead, dead.” Today, originalism has formed the basis for decisions such as Justice Samuel Alito’s Dobbs v. Jackson Women’s Health Organization opinion in 2022 overturning Roe v. Wade.

“Despite originalism’s reputation as a serious intellectual theory, it’s more like dream logic: It seems reasonable at first, but when you wake up, you can recognize it as nonsense,” Dennie writes. “Originalism deliberately overemphasizes a particular version of history that treats the civil rights gains won over time as categorically suspect. The consequences of its embrace have been intentionally catastrophic for practically anyone who isn’t a wealthy white man, aka the class of people with exclusive possession of political power at the time the Constitution’s drafters originally put pen to paper (or quill to parchment).”

In this episode of The Modern Law Library podcast, Dennie and the ABA Journal’s Lee Rawles discuss how conservative originalists prioritize the time period of the Founding Fathers over the Reconstruction era that produced the 13th, 14th and 15th Amendments.

“We can’t fulfill the Reconstruction Amendments’ radical vision of full equality and freedom if we can’t be attentive to the ways in which we have been made unequal and unfree,” Dennie writes in The Originalism Trap.

While Dennie thinks that there are portions of the historical record that support broad civil liberty protections, she says she does not think that originalism is a useful tool for progressives to use as a legal framework.

In place of originalism, Dennie has a bold proposal: inclusive constitutionalism.

“Inclusive constitutionalism means what it says: the Constitution includes everyone, so our legal interpretation must serve to make the promise of inclusive democracy real. When the judiciary is called upon to resolve a legal ambiguity or when there are broad principles at issue, the application of which must be made specific, it is proper for courts to consider how cases may relate to systemic injustices and how different legal analyses would impact marginalized people’s ability to participate in the country’s political, economic and social life.”

Rawles and Dennie also discuss how lawyers and judges can push back against originalism, the legal rights and protections achieved by groups such as Jehovah’s Witnesses and the LGBTQ+ community, why she dropped Jurassic Park references into the book, and how she keeps an optimistic outlook on the expansion of civil liberties.

“Justice for all may not be a deeply rooted tradition,” Dennie writes. “But fighting for it is.”

In This Podcast:

<p>Madiba K. Dennie</p>

Madiba K. Dennie

Madiba K. Dennie is the deputy editor and senior contributor at the critical legal commentary website Balls and Strikes, the co-director of the Democracy Committee of the New Jersey Reparations Council, and was previously a counsel at the Brennan Center for Justice at the New York University School of Law. Her legal and political commentary has been featured in the Atlantic, the Washington Post and elsewhere, and she has been interviewed on the BBC, MSNBC and other media outlets. She has taught at Western Washington University and the NYU School of Law. Dennie is a graduate of Columbia Law School and Princeton University. The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back is her first book.

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