White supremacy with a law degree: How do we escape "The Originalism Trap"?

In her new book, “The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back,” Madiba K. Dennie critiques the legal doctrine known as "originalism," calling it a movement born out of opposition to the school desegregation mandated by the Supreme Court's Brown v. Board of Education decision. Her argument is broadly compatible with those made by Eric Segall in "Originalism as Faith" (Salon story here) and Erwin Chemerinsky in "Worse Than Nothing: The Dangerous Fallacy of Originalism" (interview here). But in characterizing originalism as a “trap” and situating it historically, Dennie's analysis cuts deeper into the harm caused by originalist doctrine, without sacrificing nuance, rigor or scope.

Beyond that, to call originalism a “trap” is to imply something about freedom, and about what the U.S. Constitution actually promises. Dennie, deputy editor at the legal commentary outlet Balls and Strikes and a former counsel at the Brennan Center, advances an alternative, "inclusive" interpretation of the Constitution, rooted in the Reconstruction amendments and the Brown decision's forward-looking approach, also found in such famous cases as Loving v. Virginia, Roe v. Wade and Obergefell v. Hodges — all of which have been opposed by so-called originalists.

But the history of those cases is not just the articulation of a more inclusive vision regarding whose rights should be protected. It’s also a product of the American people organizing to advance the vision of constitutional protection from below — another more inclusive sense of meaning-making. It’s not just the Supreme Court that interprets and gives meaning to the Constitution, Dennie argues. We all do, particularly in the form of social movements, including the civil rights movement, feminism, the LGBTQ pride movement and others. Her last chapter spells out several ways in which lawyers and non-lawyers alike can more deliberately and effectively do this. To explore her ideas, I recently spoke with Dennie by Zoom. This transcript has been edited for clarity and length.

Your book was blurbed by eminent legal scholars like Erwin Chemerinsky and Eric Segall, but you go further than they do, calling originalism not just a fallacy or a misguided faith but a trap. Why is that a more useful way to see it?

I think that calling it a trap gets at the idea that originalism is basically a setup. It was something purposefully designed by the conservative legal movement to achieve the goals of the Republican Party. I think the trap concept gets at this idea that you are not actually going to be able to use it to achieve the kind of egalitarian, democratic purposes you may be interested in, that it's actually more of a ruse to cover up conservative policy goals. 

You write that "Most stories about originalism’s rise begin with Robert Bork," but you start much earlier than that, with Brown v. Board of Education. What do we learn by starting there?

Starting with Brown is more revealing. It gives you that necessary backdrop against which originalism was formalized as an official theory of law. In Brown v. Board, the Supreme Court actually asked the parties if they could provide supplemental briefing on how the Reconstruction Congress would have understood the 14th Amendment to apply to segregated schools. And the parties came up with conflicting answers, which already undercuts the idea that originalism can provide you one objective answer. Kansas argued that it was never the intention of the writers of the 14th Amendment to prevent states from exercising their authority to have segregated schools. 

When the court stepped away from that in Brown, and said that we actually can't turn back the clock to whatever the Reconstruction Congress may have thought, or even what we thought when Plessy v. Ferguson was decided, and we instead need to consider these core democratic principles and the role of education now , this was an outrage to many on the right. You had 100 members of Congress come together and put forth their Declaration of Constitutional Principles, now known more commonly as the Southern Manifesto. They argued that Brown v. Board was wrongly decided, in significant part because it deviated from the original understanding of the Constitution. They said that the court must follow what this original understanding was, and if you do that, you have to maintain segregation. 

I think this is the first real declaration of originalism. They didn’t use the word yet, but [the idea was] that original understanding is the singular acceptable method of constitutional interpretation, rather than just a factor of many you can consider — and also that doing so requires you to maintain racial segregation and to uphold white supremacy. That was always the actual goal. So everything we see after that is sort of providing legal flourishes. It's dressing up the idea in legalese, giving white supremacy a law degree and saying, "This isn't actually me being bigoted, this is what the Constitution requires."

Your book goes beyond a critique of originalism to advance an alternative you call "inclusive constitutionalism," rooted most powerfully in the Reconstruction amendments. Explain what you mean by that and how it contrasts with originalism.

I think the defining point of originalism is that the meaning of the Constitution is fixed, it's frozen at the moment of enactment. They say you have to look at a particular point in time if you want to know what the Constitution means today. I reject that idea. I instead encourage us to look at the principles — a point of principle rather than a point in time — that were the basis of the Reconstruction amendments. I say that the whole purpose of the Reconstruction amendments was to facilitate for the first time an actual functioning multiracial democracy. The Reconstruction amendments were seeking to address the status of newly freed formerly enslaved Black people and actually incorporate them into the polity and create an egalitarian society. That was the whole grand idea. 

This is a substantial shift from the Constitution that existed before before the Civil War. I think we need to take that shift into consideration and say that the Reconstruction amendments transformed the whole Constitution in order to transform the country. So when we are considering what any part of the Constitution means, we should be doing it with those goals in mind, saying that we need to look through the lens of the purposes of the Reconstruction amendments and trying to bring about an inclusive multiracial democracy. So by inclusive constitutionalism I mean that the Constitution includes everyone, and the point of it is to make an inclusive democracy real. So that's what we need to do when we interpret any of its provisions.

The concept of "substantive due process" plays a key role in your thinking. You note that originalists "want it gone," but they're not the only ones. That concept gets criticized because of its alleged origin in the Lochner decision, which struck down limits on working hours. You argue that's not the right way to understand it. So what does that term mean, and how should we really understand it?

The 14th Amendment protects a range of rights, and among them is the right to due process of law. Some conservatives, like Clarence Thomas, argue that process itself is all that is required, that it has no substantive meaning. They say that the due process clause tells you that the government has to check certain boxes before it infringes a given liberty, but it doesn't prevent them from infringing that liberty, it just says they have to get over the requisite hurdles first. I think that doesn't actually make sense. You can't understand what process protects your rights and liberties unless you also think about what rights and liberties should be protected. They necessarily go together. So this idea of substantive due process moves beyond the steps that the government has to do, to the question of what things the government can't do, where it's just a realm for yourself, free from government violation or infringement or curtailment of your liberties. 

This has been controversial at times and some folks link it to Lochner, where the court struck down a law that was trying to protect bakers who were working long hours in really awful conditions. The New York state legislature had stepped in and created wage and hour restrictions and the court said, no, this is infringing on the liberty of workers and employers to form a contract. They entered into this agreement and the government is unreasonably injecting itself into their agreement. 

I think that’s a far cry from the kind of substantive due process decisions that we have seen more recently in cases like Roe v. Wade or Obergefell v. Hodges. In Lochner, the court was using this idea of substantive liberty rights to protect inequality, basically to protect the ability of employers to run roughshod over their employees, to maintain dominant power relations. But the way that substantive due process has been used in the following decades has been to protect vulnerable people, to disrupt those hierarchical systems rather than entrench them. I think that’s completely different from the from the world we see in Lochner, so it doesn't really make sense to conflate these two things. They are serving very different purposes. One is trying to maintain oppression and the other is trying to upend it. One is saying that we need to allow whoever has more power to exercise that power, whereas the other is trying to protect people who have less power and to to get rid of systems of subordination. I think these are just categorically different things. 

You note that in deciding the Griswold case — which effectively legalized contraception for married couples — "parts of the opinion read like a Mad Libs where the phrasal template is 'any amendment that isn’t the 14th.'" So they still seem to be allergic to Lochner. But then, in Loving v. Virginia, which struck down laws against interracial marriage, the ruling was clearly grounded in the 14th Amendment. What was going on with those two decisions?

I think in Griswold the court was still very nervous of the potential Lochner association. They didn't want to be seen as just freewheeling, and they had not yet articulated the actual "substantive due process" idea that I just laid out on how it's grounded in protecting marginalized people. They hadn’t gotten there yet. So they were concerned that it would look like they were just doing whatever, and were really trying to avoid any invocation of the 14th Amendment, much to Justice [John Marshall] Harlan’s chagrin. In his concurring opinion, he's like, "You guys, we can just use the 14th Amendment. It’s right there."

But by the time you get to Loving, the court feels more comfortable recognizing the expansiveness of the 14th Amendment. I think part of that shift comes from advocacy that racial justice organizations were doing. I think it really is a testament to the idea that constitutional interpretation does shift over time, In addition to being normatively undesirable, originalism is also just empirically untrue. We know that the Constitution's meaning changes, because we’ve seen it change all these times through history, and I would say that is often a good thing. Overturning Plessy v. Ferguson [which held that racially segregated schools were constitutional] is a good thing. These are positive steps. 

So how were the developments around reproductive rights that led to Roe v. Wade echoed in the evolution of rulings on LGBTQ rights and marriage equality? 

Those cases really underscore the idea that the Constitution protects bodily autonomy, that it protects privacy and intimate relationships, that you have the right to make your own decisions about these really core personal matters. Reproductive rights is one example of that, but the principle extends into multiple areas, so they realized that it also applies to gay couples who have an interest in having their actual relationships not be marginalized by law,  and they too can have equal marriage rights as everybody else. 

All these substantive due process decisions build on each other in a way that precedents often do. It forms what I call the human-rights Jenga, just putting these blocks one on top of another, building up this tower of rights, which has now led us to a really dangerous position. Because the court pulled out the Roe v. Wade block, so now the tower is destabilized and all sorts of rights are called into question.

You go through the decisions on LGBTQ rights and one important theme is the way originalists use the existence of past laws criminalizing homosexual conduct, and the absence of any protections, as a justification. Then, when they get to the Dobbs decision [which overturned Roe] they rely on this bizarre, cherry-picked history. What's your analysis of the way that decision uses "history and tradition"? 

Originalism’s use of history and tradition is remarkably hypocritical, and remarkably flexible. It bends and shifts depending on what outcome they want to reach. They present originalism as a neutral tool, saying, "If you just look at history, you know, that’s objective." But there are so many questions that obscures, such as" Whose history? History from what point in time? How are you defining the historical right that you're looking for? There are so many considerations. Suggesting you're looking to history and tradition doesn't actually tell you anything. It just allows a neutral-seeming cover for justices to do whatever cherry-picking they desire. 

I think that was made extremely clear when Dobbs was decided and then Bruen was decided, on consecutive days. In Bruen, the court says that gun regulation is presumptively unconstitutional if there is no historical analogue from the founding era. If past legislatures didn't regulate guns in a particular way, that's evidence that they knew they couldn't, that it was unconstitutional for them to do so. But then, literally the next day, when presented with historical evidence of legislatures not criminalizing abortion, of a pregnant person having the right to end a pregnancy at least until they felt a fetus move, now the court says, "Well, just because they didn't do it doesn't mean they thought they couldn't." So on back-to-back days they use the absence of legislation to make directly conflicting inferences about what Congress has the power to do. So it is just blatantly hypocritical, blatantly outcome-oriented. There's nothing like a neutral application of principle, because they're doing opposite things, just based on the decision they wanted to come to. It really illustrates the farcical nature of originalism and how it applies in very convenient ways for the conservative legal movement. 

In your chapter "Stealing Our Elections," you tell the story of how Barack Obama's election gave rise to a wave of voter-suppression laws. You analogize that to how, after Brown v. Board of Education, there was a massive flight from public education. So there’s a gut-level conservative base reaction that is then backed up by the courts in a series of decisions. A really crucial one was Shelby County v. Holder, where Chief Justice Roberts advanced the idea of equal state sovereignty, which you tie back to the Dred Scott decision. How do you make sense of what happened there, and how does it fit with your larger theme?

This is a little bit of a challenging question because there are so many disastrous things going on in Shelby County. I think the single most important thing to know about Shelby County is that the Supreme Court is literally just making things up in order to further white supremacy. This idea of equal sovereignty that John Roberts presented as a justification to strike down the Voting Rights Act — he just pulled that, mostly, out of thin air. 

He cited two cases completely unrelated to the Voting Rights Act that were used in Dred Scott, of all cases. So he’s smuggling in this horrific antebellum reasoning and he's relying on this idea that was actually called the "equal footing doctrine" — he couldn’t even bother to get the name right — which said that states have to be admitted to the Union on the same terms as other states. That wasn't actually always true in practice, but that was the broad idea. And he looked at another case about navigable water rights in the states and pieces these together, with no basis, to say, well, it's really important for the federal government to treat states the same, and the states have sovereign rights. So the Voting Rights Act is infringing on states rights, and we can now hollow out the primary vehicle for enforcement of the Constitution's protections against racial discrimination in voting. 

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This is just nonsense. This is just garbage. There is no actual intellectual support for any of that. But he dressed it up in nice legalese to obscure what he was doing, and use this nonsense to justify removing protections for Black voters, and the consequences were swift and severe. Immediately, you started seeing strict anti-voter legislation get enacted. Immediately, you saw a rise in voter suppression. States that had had their laws blocked before by the Department of Justice were now like, "Ah, excellent! We can now implement the exact same law that was found discriminatory before."

One of the laws enacted immediately in the wake of Shelby was eventually struck down in the circuit court which described the law at issue — this is a direct quote — as “targeting Black voters with almost surgical precision.” So this is the level of intentional discrimination that John Roberts unleashed with this decision. That’s horrible, first of all, and second of all, it’s leading us to the dangerous place we’re in today, where we have all these restrictive voter laws, all these efforts to dilute people of color's voting power, whether through redistricting or through overturning elections and just ignoring the ballots of millions of people. I think there is a relationship between that attack on democracy then and the attacks on democracy now. It wasn't at the Capitol, it was in a courtroom — but it was still a coup, in a way.

You have another chapter called "Stealing the Census," which I don't think people recognize as being at the same level as voting rights or reproductive rights and privacy rights. What's going on there and why is it important? 

I think that the census is notoriously slept on. Folks don't know a lot about the census, it’s not something that engages people. But the census is actually the cornerstone of American democracy. In order to serve the people, we have to know who the people are. We have to know where they are and how many of them there are, so we can try to serve the people's needs accordingly, to know how best to allocate our resources. The census is a constitutionally required decennial count of the population. Then representation in the House of Representatives is based on that number. So there's a direct link between population and representation in the House, at least. In the Senate, not so much. 

That was a really important American innovation. One of the things that I find interesting and troubling about originalism, as it applies to the census, is that originalists basically argue that the Constitution requires a flawed census. Our understanding of science and math has evolved a lot in the past 200-plus years. We have better statistical models at our disposal now, better things we can use to get a more accurate enumeration of the population. Yet there have been originalist arguments that we can't use those because the Constitution understood an actual enumeration to mean not actually counting the number of people and getting an accurate number, but going one by one, not using statistical models. I like to think of this as the "Little Bunny Foo Foo" method, because it's like you’re scooping up all the people and bopping them on the head. 

It doesn't make sense to say that the Constitution requires you to have an inaccurate census, and it’s especially outrageous when we know that these inaccuracies are not evenly distributed. We have differential undercounts among some groups, whether they’re racial groups or low-income groups or age groups — children under age 5 are especially undercounted — or unhoused people. So it means that resources are sent to the wrong areas. Typically, poor and browner communities get less than they should be getting, while richer and whiter communities get more than they should be getting. According to originalists, that's what the Constitution requires. I just find that absurd.

In the final chapter, you write about ways to build the movement for a more inclusive form of constitutionalism. What are some ways that ordinary people can help? 

There are a range of tactics and strategies available. I think the connective thread through all of them — whether you had the good sense not to go to law school or whether you're an attorney — is rejecting the idea that the Supreme Court is the sole arbiter of what's constitutional and what's not. I think people need to reclaim the idea that they too can have a say in constitutional interpretation and assert their idea of what the Constitution means. 

This is not actually novel. This is something people have historically done in all the big social movements we care about. These were the results of people saying what they think the Constitution means, and I think people can and should seize any opportunity that presents itself to act out their constitutional vision. Examples of this include the Montgomery bus boycott: They believed that segregation was unconstitutional, so they refused to ride these buses. They put their constitutional vision into practice. If you look at the gay rights movement, they believed there was a constitutional right to marriage equality, so they started at the state level, passing all these equal marriage laws and putting that into practice. More recently, even when the Supreme Court has said there is no constitutional right to abortion, we see ballot initiatives where people explicitly update their state constitutions to say, yes, there is. 

These are examples of important measures that regular people can take. They’re fighting for new laws but also acting out what they think the law requires, whether that's through a boycott or protest or any other kind of direct action. One of my favorite examples is jury duty. I think too many of us avoid jury duty. It’s not many people's idea of a good time. But it does present people with an opportunity to choose to affirm or reject the government's understanding of the Constitution. We've seen this happen before. 

I give an example in the book of a case where a bunch of protesters were arrested and asserted to the community that they didn't think what they did should be considered a crime. They understood the law differently and believed their cause was a righteous one. So even though there was no real question as to whether they did the things they were accused of doing — they admitted that they did — they thought it shouldn't be a crime, and people chose to acquit them. I think that will be really important in this era of rampant criminalization of protest, of reproductive health. Whenever there are civil rights fights going on that the government does not like, the police get involved. So I think it is useful for people to know that they always have the power to say no if they're on a jury. 

Finally, what's the most important question I didn't ask? And what’s the answer?

I guess the question would be: Why should people still have any hope today? Why should they care about any of this, given the awful state of the of the law right now? And I think that the dramatic and terrible swings in the law that we've seen should actually remind us that change is possible, that what exists now will not necessarily exist tomorrow, and that people have the power to effectuate those changes. The law is not a static instrument, it’s not something immutable that is handed down from on high. It's something that people ultimately shape and have always shaped, and we can continue to do so.