Madiba K. Dennie, author of "The Originalism Trap" in conversation with Elizabeth Hira.

About the Book: 

A rallying cry for a more just approach to the law that bolsters social justice movements by throwing out originalism—the theory that judges should interpret the Constitution exactly as conservatives say the Founders meant it. 

Lawyers don’t often admit this in mixed company, but Madiba Dennie wants to let you in on a secret: There is no one true way to interpret the Constitution. Americans saw just how subjective it can be when the Supreme Court denied basic bodily autonomy to millions of people in its Dobbs v. Jackson Women's Health Organization decision, suggesting that our rights and liberties are frozen in a cherry-picked version of history. This is a line of constitutional interpretation called originalism--a framework that says we must be constrained by the meaning of the Constitution's text when it was written. It has a reputation as a serious intellectual theory, but as Dennie argues in The Originalism Trap, originalism is more like dream logic: It seems reasonable at first, but when you wake up and see it clearly, it's revealed as nonsense. Originalism deliberately over-emphasizes a particular version of history that treats civil rights gains as categorically suspect. According to Dennie, it's time to let it go.   

The Originalism Trap discards originalism in favor of a new approach that serves everyone: inclusive constitutionalism. Dennie disentangles the Constitution's ideals from originalist ideology and emphasizes the power of the Reconstruction Amendments. These post-Civil War amendments, which are conveniently ignored by originalists, sought to build a democracy with equal membership for marginalized persons. The Originalism Trap argues that the law must serve to make that promise of democracy real. In chapters on how originalists are diminishing our right to vote, stealing the right to control our own bodies, and manipulating the way we are counted in the census, Dennie shows readers that the Constitution belongs to them and how they can use it to fight for their rights.  As courts--and the Constitution--increasingly become political battlegrounds, The Originalism Trap is a necessary guide to what's at stake and a vision for a more just future.

About the Author:

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. 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 New York University School of Law. Dennie is a graduate of Columbia Law School and Princeton University. The Originalism Trap is her first book.

About the Conversation Partner:

Elizabeth Hira is a social justice attorney pursuing large-scale democracy reforms that center equity. She is the founder of American Stories, a national oral history project building a new narrative of our inclusive democracy, generously supported by the Ford Foundation and others. Previously, Elizabeth served as a Congressional staffer in the Senate, for then-Sen. Kamala Harris; in the House, where she was integral to drafting the sweeping voting rights reform bill named H.R. 1/The For the People Act; and as a senior fellow at the Brennan Center for Justice. Elizabeth has also worked globally and domestically for reproductive justice and LGBTQ rights, and she's passionate about engaging the arts for equity, per her one-woman show, “Pursuing Guerrilla Equality: Modern Misadventures of Gender and the Law,”  and her work to advance inclusion as a crossword puzzle tester for The New York Times. She holds a BA from Stanford and a JD from Georgetown Law.