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

White supremacy with a law degree: How do we escape "The Originalism Trap"?
Legal scholar Madiba K. Dennie on how the right twisted the Constitution — and how ordinary citizens can fight back

By PAUL ROSENBERG
Contributing Writer
PUBLISHED JULY 14, 2024 6:00AM (EDT)


(Salon) 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.

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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.

....(snip)....

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.

.....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. ..............(more)

https://www.salon.com/2024/07/14/supremacy-with-a-law-degree-how-do-we-escape-the-originalism-trap/