“The Originalism Trap” is a sharp critique of legal theory

Originalism is the claim that judges should be guided and constrained solely by something original in the Constitution when interpreting it, even though that “something” has changed over time—from the original intent of the framers to the original public meaning of the text to the original law at the time of its enactment, with various subtheories debated today. The theory has been sharply criticized. For one thing, skeptics say, its adherents have given up on the search for the framers’ intent, an idiotic task that can lead only to vague answers. Originalism as practiced today is a modern invention whose methods have little to do with how the founding generation conceived the Constitution or its method of interpretation, as recent historical research has shown. Proponents of the theory claim that its objectivity is one of its strengths. But the Court relies on it arbitrarily: It invokes objectivity when its alleged findings align with the priorities of conservative Republican activists—on individual gun rights, for example—and it ignores or modifies it when the Court seeks to invalidate affirmative action or to strike down protections for minority voting rights, to name just two examples.

In The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back, civil rights attorney and legal commentator Madiba K. Dennie offers a scathing, strongly worded critique of originalist theories—and calls for a popular uprising against them. This project is timely, because the number of Supreme Court justices who support such theories could increase if Donald Trump is re-elected to the White House this fall.

As Dennie puts it, “Originalism knowingly buries the legal claims of historically marginalized groups to liberation.” She accuses supporters of glorifying the founding era, when blacks, women, and the poor were not fully included, or in some cases not included at all, in the order created by the Constitution. In contrast, originalists traditionally downplay the importance of Reconstruction, the post-Civil War period when the 13th, 14th, and 15th Amendments were passed, guaranteeing many Americans liberty, equality, citizenship, and to a lesser extent, suffrage.

Dennie is not the first to note this tension between originalism and the group identities of those excluded from the original pact. “The Originalism Trap” locates the theory’s origins in the debate over Brown v. Board of Educationin which the Court asked the case’s lawyers to evaluate the status of racial segregation in schools in the late 1860s, when the 14th Amendment was drafted and ratified. Dennie shows that the segregationist congressmen who signed the 1956 Southern Manifesto condemning the Supreme Court’s decision that racial segregation in schools was unconstitutional based their arguments on the “original” meaning and intent of the Constitution and its 14th Amendment. The state of Virginia did likewise when defending its ban on interracial marriage, which the Court struck down in Loving vs Virginia. It is true that the tradition of appealing to the intentions of the Founders and Framers in constitutional discourse has a much longer (and not always nefarious) history, but Dennie is right that the origins of our current fixation on originalism and the nature of the debate lie in the reaction to Brown and his legacy.

“The Originalism Trap” criticizes one recent court decision after another, affecting gun rights, abortion, LGBTQ rights, voting rights, the census, and other issues. The Supreme Court and conservative advocates have blatantly manipulated and sometimes studiously ignored originalist methods, Dennie argues, with the consistent result of making life worse for traditional outsider groups. For example, she sharply criticizes Chief Justice John Roberts’ out-of-the-blue invocation of the principle of “equal (state) sovereignty” to invalidate parts of the Voting Rights Act when he could find no constitutional provision that would do the trick, showing that the decision is better explained by the chief justice’s longstanding hostility to the law as a principle. “It was a lawless and racist decision,” she writes.

But sometimes it casts things into the penumbra of originalism that don’t quite fit in, such as the court’s decision to overturn the Trump administration’s travel ban on Trump vs. Hawaiiin which she gave credence to the government’s claim that the ban had nothing to do with anti-Muslim bias, as well as several other Trump-era cases involving the census and House apportionment. In those cases, some conservative activists did indeed resort to specious originalist arguments, but Dennie’s critique is not primarily about the use or avoidance of originalist methods. Her real concern seems to be that the court and activists of a Republican Party captured by Trump are pursuing fundamentally anti-democratic goals.

Dennie has no affinity with those liberals like Justice Jackson who have tried to reclaim originalism from conservatives. She concludes that while “progressive originalists” and their methods are preferable in their goals, “they still limit our constitutional imagination to an era when much of America was much worse off” and that there is no way they will persuade conservatives. Rather than an originalist camp, she advocates her own theory that “emphasizes the transformative goals of the Reconstruction Amendments.” Dennie calls it “inclusive constitutionalism.”

She argues for a method that emphasizes the “pro-democratic and anti-subordination goals of the Reconstruction Amendments.” It is not clear that her method is entirely different from that of liberal originalists. She does focus on the text of the Constitution and the intentions behind it—in this case, the post-Civil War amendments—though she is more interested in the general principles embodied in those amendments than in the limitations of text, intention, and context with which originalists are concerned. But originalist scholars, in both their liberal and conservative varieties, have also recently attempted to come to terms with the Reconstruction Amendments and the need to understand their precepts in the broadest sense.

What The Originalism Trap is really about can perhaps be guessed from the words in the subtitle: “We the people,” taken from the famous preamble to the Constitution. Dennie’s book is best read as a critique of a Court that seems hell-bent on using its own unaccountable power to decide partisan issues at the expense of the other branches of government and the American people. Appropriately, Dennie ends her book by listing the ways lawyers, activists, and ordinary Americans can oppose a Court whose anti-democratic impulses may one day be strengthened. Whether readers agree with her analysis or not, those who fear that outcome will find comfort and motivation in this strongly argued book.

Kenneth W. Mack, a historian and Harvard law professor, is author of Representing the Race: The Creation of the Civil Rights Lawyer and co-editor of the forthcoming In Between and Across: Legal History Without Boundaries.

How extremists stole the Constitution and how we, the people, can take it back

Random House. 286 pages. $28