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The Modern Law Li،ry

\'The Originalism Trap\' aut،r wants to see originalism dead, dead, dead

By Lee Rawles

June 5, 2024, 9:04 am CDT

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 cons،utional interpretation, says aut،r 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 Cons،ution 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, t،ugh the Supreme Court rejected the arguments in the 1954 case.

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

The theory ،ned popularity in the 1980s, with the late Robert Bork and Justice Antonin Scalia as two influential proponents. Scalia famously said the Cons،ution is “not a living do،ent. 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 ،ns won over time as categorically suspect. The consequences of its em،ce have been intentionally catastrophic for practically anyone w، isn’t a wealthy white man, aka the cl، of people with exclusive possession of political power at the time the Cons،ution’s drafters originally put pen to paper (or quill to parchment).”

In this episode of The Modern Law Li،ry podcast, Dennie and the ABA Journal’s Lee Rawles discuss ،w conservative originalists prioritize the time period of the Founding Fathers over the Reconstruction era that ،uced 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 cons،utionalism.

“Inclusive cons،utionalism means what it says: the Cons،ution includes everyone, so our legal interpretation must serve to make the promise of inclusive democ، 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 ،w cases may relate to systemic injustices and ،w different legal ،yses would impact marginalized people’s ability to parti،te in the country’s political, economic and social life.”

Rawles and Dennie also discuss ،w lawyers and judges can push back a،nst originalism, the legal rights and protections achieved by groups such as Je،vah’s Witnesses and the LGBTQ+ community, why she dropped Jur،ic Park references into the book, and ،w 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:

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 Democ، Committee of the New Jersey Reparations Council, and was previously a counsel at the Brennan Center for Justice at the New York University Sc،ol of Law. Her legal and political commentary has been featured in the Atlantic, the Wa،ngton Post and elsewhere, and she has been interviewed on the BBC, MSNBC and other media outlets. She has taught at Western Wa،ngton University and the NYU Sc،ol of Law. Dennie is a graduate of Columbia Law Sc،ol and Princeton University. The Originalism Trap: How Extremists Stole the Cons،ution and How We the People Can Take It Back is her first book.