The “Originalist” Supreme Court vs Democracy

As the Right is using “originalism” to re-impose a reactionary order on the country, I exchange letters with Madiba Dennie about the dangers of judicial supremacy – and how to get out of this trap

I hate having to keep up with the Supreme Court. It’s a really bad sign that we all have to: All of us who seek to understand American politics – all of us who care about whether or not the country continues on its path towards finally realizing the promise of egalitarian democracy. In a stable democratic system, we shouldn’t have to be alert at all times, shouldn’t have to brace ourselves every spring and wonder which fundamental rights the Court will roll back next, whether or not the system of self-governance will survive the next barrage of rulings. In a functioning system, citizens should be able to trust the institutions that are nominally tasked with upholding and defending democracy. Instead, in the United States, the rightwing supermajority on the Supreme Court acts as the spearhead of a reactionary mobilization against multiracial pluralism. In this crusade to entrench and maintain discriminatory hierarchies of race, gender, religion, and wealth, conservatives are deploying “originalism” as a key weapon to dismantle the civil rights order. They are trying to turn the clock back – as far back as to before the Reconstruction Amendments that were adopted after the Civil War – by repealing whatever racial and social progress they say is not in accordance with the Constitution’s “original public meaning,” not “deeply rooted in American history and tradition.” And somehow, they got much of the legal establishment, mainstream political discourse, and liberal America to accept “originalism” as a coherent intellectual project and the dominant philosophy of constitutional interpretation.

America can accept judicial review as it is defined by this Supreme Court majority – which really means: judicial supremacy – or it can have true democracy and functioning governance. But not both. And yet, at least until very recently, the myth of the nonpartisan Court that stands above politics, even functions as an ally in the struggle for a fairer America, was pervasive among Liberals – who routinely named Chief Justice John Roberts as one of their favorite federal officials.

As (small-d) democratic America – and Democratic leadership, especially – struggles to move past a mythologized understanding of the Court and come up with a counter to the reactionary majority’s assault, it can be really hard not to despair. In this situation, Madiba Dennie’s new book The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back – which is out now! – makes an absolutely crucial intervention: It not only dissects the originalist creed and the political project behind it, but also charts a better way forward.

Over the course of two days at the end of last week, Madiba and I exchanged questions, answers, and more general thoughts in writing: About her book, the past and present of the Supreme Court, the role of the Reconstruction Amendments in American history, the rise of “originalism” since the 1950s, and the struggle to establish egalitarian democracy.

Madiba K. Dennie is an attorney, columnist, and professor who earned her law degree from Columbia Law School. She is the Deputy Editor and Senior Contributor at Balls and Strikes, a crucial outlet for critical legal commentary. While Madiba says that “her hot takes are not legal advice,” I can assure you that her sharp, incisive analysis is among the very best perspective you can find on the Supreme Court. Madiba was previously a counsel at the Brennan Center for Justice and she has taught at Western Washington University and NYU School of Law.

The Originalism Trap is her first book. And it is such a breath of fresh air: So sharp, such a dynamic (and really: fun!) read, yet so precise in its analysis, so profound in its reflection about our current moment, how we got to where we are, and where we might be going next.

What follows is our exchange of letters, if you will. I am tremendously grateful to her for the effort she put into this, for how generous she was with her time. The result is the most enjoyable conversation I’ve ever had about the Supreme Court, and an enormously clarifying one as well.

Thomas Zimmer: The subtitle of your book is: “How extremists stole the constitution and how We the People can take it back.” That is as clear a mission statement as you’ll ever get, and your book certainly delivers. You write with such clarity, both in style and substance, with such purpose. While I was reading, I kept thinking: This is a book written by an author who really knew exactly what she wanted to say, and how to say it. I wonder: When did you decide to write this book? Was there a specific moment, or a specific event that clarified for you what kind of intervention you wanted to make with this book? Take us into the thought process that ultimately led to The Originalism Trap.

Madiba Dennie: I’m so glad that the book fulfilled its promise! The origin story of the book really stems from the leak of the Dobbs opinion. The Dobbs draft takes the reader on a ridiculous tour through history, or at least a version of it. (The Reconstruction didn’t really make it into Alito’s opinion, for example, but he found space for 17^th-century witch hunter Sir Matthew Hale.) And Alito reasons that there was no historical right to abortion, so there can be no current right to abortion. The opinion made dangerously, dreadfully clear that originalism establishes unjust legal standards in order to achieve unjust results. And I was fed up. 

I also found myself a bit frustrated and disappointed by the response of some legal elites who seemed more concerned with the leak’s breach of norms or the protesters outside of the justices’ houses rather than the actual human rights violations that were being carried out by the Court. And I remember talking to a sort of mentor figure about all this and she asked me pretty plainly, what do you want to do about it? What do you want for the law? And I thought, I want to write a book that lets lawyers and laypeople alike know that the Court is thinking about the Constitution all wrong, and that we can choose to do things another way. So, then, that’s what I did.

TZ: Before we get back to Dobbs (and we will!): Everyone who follows American politics will have heard the term “originalism.” But I think it’s worth clarifying, as we are getting into this story, what, exactly “originalism” is. And let’s separate: What is the standard answer in legal academia and mainstream court coverage to that question (which is probably mostly in line with how originalists have presented their project) – and how would you assess or define what “originalism” actually is?

MD: Ooh that’s a fun distinction. I think the standard answer is that originalism is a legal theory that maintains that the meaning of the Constitution is fixed in time, and that constitutional interpretation today must be governed by the terms’ original public meaning. Whatever it meant then is what it means now. This sounds simple and reasonable enough, at first glance, for many people. Glance a little longer, though, and it becomes clear that originalism is really just a coverup for the conservative legal movement’s policy agenda. The idea that the Constitution can only mean now what it meant historically specifically arose as a means to undercut civil rights gains. It also creates this air of legitimacy, like the person interpreting the Constitution isn’t inserting any of their own biases, they’re just uncovering what the people who signed onto the document believed. You know better than I that any historian would tell you there is not a single objective discoverable public meaning; the Constitution’s meaning has always been contested. That’s just part of what self-governance entails. But originalism allows reactionaries to seek friends in the past because they don’t have them in the present, and say “well, this isn’t my view. This is the view from the 1800s. There’s no bias here.” And in reality, the bias is already baked in.

TZ: I believe the standard account of originalism’s history focuses on the 1980s as the moment when this approach to constitutional interpretation rose to prominence. But you start earlier and locate its emergence in the reaction to Brown v Board of Education in 1954, and the decisions of the liberal Warren Court more broadly. Can you talk about why you think it’s important to conceptualize the, excuse me, origin story of originalism in this way, and start in the 1950s?

MD: Yes, generally when folks talk about the beginning of originalism, they talk about Robert Bork’s confirmation hearing in 1987, or they talk about Ronald Reagan’s Justice Department as helmed by Edwin Meese III. They don’t talk about Brown v. Board. In Brown v. Board, however, the state of Kansas made a textbook originalist argument. They said that the Constitution was not understood at the time of ratification to prohibit states from segregating schools. (One line from their brief that stood out to me said that the Framers were not concerned about a “right to mingle with the other races in public schools,” as if that was the sum total of harm caused by segregation.) And they argued the Court did not have the authority to interpret the Constitution differently from the way it was understood when written.

In Brown, the Court rejected that argument. The justices unanimously declared that they couldn’t determine the constitutionality of segregation just by turning back the clock to when the 14th Amendment was ratified, or to when Plessey v. Ferguson was decided in 1896. The Court believed it had to look at the real world – here, the role of public education in American life – and apply the anti-racist principles at the heart of the Constitution as amended.

This didn’t go over well in some corners of government. And over 100 members of Congress released a document that is best known as the Southern Manifesto, but the actual title is The Declaration of Constitutional Principles. And they made a constitutional argument that Brown was wrongly decided, in significant part because the Court did not adhere to the perceived original understanding of the Constitution. That’s the foundation of originalism right there. Originalism has always essentially been a search for nice legal-sounding reasoning to justify the maintenance of historical systems of oppression.

TZ: How do we get from there – segregationists using originalist logic and arguments (although they didn’t use the term yet) to justify their opposition to multiracial democracy in the 1950s and 60s – to originalism, by the early 1990s or so, being widely accepted dogma on the Right, including in establishment conservative circles, and Antonin Scalia proudly injecting it on the Supreme Court through everything he wrote? This is where legal academia and a newly institutionalized conservative legal movement played a key role, correct?  

MD: Absolutely. The rightwing very diligently cultivated a network across law schools to basically incubate the originalist ideology and raise up adherents. They created the Federalist Society in 1982. They cranked out law review articles to flesh out their ideas. And they worked intimately with the Justice Department under Ronald Reagan. They were able to develop a pipeline for young originalists to become DOJ attorneys or state attorneys general or what have you. Basically, they got their numbers up, and there’s strength in numbers. And, another key part of this is that it wasn’t just about the lawyers. It was important to get lawyers in positions of power, sure, but they also took their case to the public and activated social movements – particularly the anti-abortion movement, rallying around the idea that Roe was wrongly decided and proper originalist decision-making would set things straight.

TZ: The way you outline originalism’s rise is so plausible to me because it situates this story within the context of a broader counter-mobilization against the progressive changes of the 1950s and 60s. Inventing these legal theories and laundering them through legal academia is one dimension of this broader rightwing political project; another is the creation of an institutionalized conservative legal movement. And like you say, this also ties in with the grassroots mobilization of rightwing activists, and, by the 1990s, has managed to connect to, and take over, the power centers of conservative politics. We are not looking at separate stories coincidentally unfolding at the same time. We are dealing with a decades-long, multi-level effort to roll back the racial and social progress towards egalitarian democracy.

MD: I think that’s right. Sometimes I hear people say things like, it feels like everything is under attack at once. And that’s kind of true because it is part of an all-encompassing project to erode progress and concentrate power in the hands of a few.

TZ: Originalism has always presented itself as an approach that would guarantee judicial restraint: And it certainly started out as more of a defensive tactic to stem the tide of liberal jurisprudence. But, clearly, it has morphed into much more than that: The Second Amendment cases since District of Columbia v. Heller in 2008, in which the Court first recognized an *individual* right to bear arms, and of course cases like Dobbs in 2022, in which the Court abolished the right to reproductive freedom, demonstrate how originalism is now being deployed as a weapon that serves to vastly expand the privileges of some groups (white men, specifically, and those who share specific reactionary sensibilities) while dramatically curtailing the fundamental rights of others. Can you talk a little bit about that trajectory: from a more defensive tool designed to function as a bulwark against the extension of rights to a sledgehammer working to dismantle existing rights and safeguards – if that is indeed a plausible way to describe what has happened?

MD: That’s really interesting – I don’t think I had thought of the arc that way before but you’re right. Two factors come to mind. One is basically that people tend to crawl before they walk. Originalists spent time developing their theories and gradually got to introduce them, so, at first, they have incremental victories. The second factor is the change in composition of the judiciary. It became common practice to basically screen possible conservative judicial appointees for their originalist bonafides and their allegiance to the cause. George W. Bush initially nominated Harriet Miers to the Supreme Court but then withdrew her nomination, in part because conservatives were like, no we need someone more hardcore. So, then he nominated Samuel Alito. Republican elected officials also engaged in a lot of political hardball, including, of course, keeping a Supreme Court seat open for over a year when a Democrat was in office, and then doing a speedrun confirmation of Amy Coney Barrett even though voting had already begun in the election that Trump would go on to lose. So, I think they were patient while they were building power, and then once they had amassed enough power, they felt no need to be patient.

TZ: What I find so interesting about originalism’s trajectory is that it mirrors a broader story of how the Right has been embracing an increasingly authoritarian form of minoritarianism. They demanded “judicial restraint” at a time when they, at least rhetorically, presented themselves as the (“silent” or “moral”) majority, and the courts were derided as advancing the agenda of a loud minority. But since the 90s, the Right has aggressively shifted towards presenting itself as a persecuted minority – a minority that deserves to be in charge of the country nonetheless, because it embodies “real” America, “virtuous” America. And in that situation, it is not judicial restraint they want, not even rhetorically: They want the courts to step in and act as protectors of “real America” against the onslaught of the “Un-American” hordes. In that sense, I think the trajectory of originalism is also shaped by a radicalizing sense of being under siege that defines the Right – and a sense that being patient was simply not an option anymore.

MD: I agree wholeheartedly. I think that’s another one of the biases built in to originalism. It sets as its standard for legitimacy a time when only wealthy white male property-owners got to count as “real” Americans with a political voice worth respecting. This also reminds me of the Alexander v. South Carolina NAACP opinion that came down on May 23 – the case where the Court basically approved racial gerrymandering and also kind of finger-wagged about gerrymandering being called racist. It prioritizes this feeling of aggrieved whiteness over actual harm to people of color, and I think it was Sotomayor’s dissent that said something to the effect of, y’all are literally making the arguments that the opponents of Reconstruction did right now.

TZ: We are not having a purely academic, intellectual discussion about different modes of constitutional interpretation: Originalism has caused tremendous harm, the political project which it serves is causing immense harm. The originalists are now engaged in a fairly open assault on the rights grounded in the 14th Amendment, and the Reconstruction Amendments more broadly. In a way, Clarence Thomas, in his concurrence with the decision in Alexander v. South Carolina NAACP, is taking us back to the beginnings when he argues that the Court actually overreached in Brown v Board of Education in 1954. I wonder how you would describe the end game of the originalists. If the political project they are pursuing were to succeed, if they got exactly what they wanted, what would America look like?

MD: Yeah, it’s definitely very scary and very real harm. And I think this is another area where originalism, authoritarianism, and other forms of extremism like white supremacy are really connected. Because the constitutional vision Thomas and Alito and company are advocating for is one where the government basically has neither the obligation nor the authority to address actual societal harms. And it leaves people in a very “might makes right” kind of world, that permits all kinds of domination and subordination. Like the kind of reasoning in Plessy v. Ferguson, where the Court is like, “we’re not saying segregated train cars are good, we’re just saying it’s not our business, you all can do as you please and sort that stuff out amongst yourselves” would be right at home with the Court’s decision-making today. Originalism basically seeks to immunize racial and social hierarchies and put them beyond the reach of the Constitution. The endgame would be a country where the people who have always had rights continue to have them and everyone else can fend for themselves. This, for them, is just the way things are supposed to be.

TZ: I think this is exactly right. You quote historian Eric Foner in your book, who argues that the Reconstruction Amendments “transformed the Constitution from a document primarily concerned with federal-state relations and the rights of property into a vehicle through which members of vulnerable minorities could stake a claim to substantive freedom and seek protection against misconduct by all levels of government.” Foner convincingly argues that this transformation was so profound that it amounted to what he calls the “Second Founding.” And it really seems to be the project behind the originalism chimera to turn the clock back to *before* the Reconstruction Amendments. That doesn’t mean re-instituting slavery, exactly. But it means re-orienting the government towards privileging the rights and powers of certain (white, Christian, patriarchal) groups, of those who are already at the top – and away from acting (very broadly speaking) as an engine of racial and social progress and egalitarianism, which was only possible on the basis of the Reconstruction Amendments, and really didn’t happen until the 1950/60s.  

MD: Right. Saying originalists want an antebellum Constitution is not to say they literally want to bring back slavery, necessarily. But it recognizes that the pre-Civil War Constitution was a fundamentally different Constitution, where the rights and liberties of “we the people” were actually only for a small subset of people.

TZ: I really want to emphasize that, from a historical perspective, originalism is complete bunk. This was never more obvious than in the summer of 2022, when this Court proudly introduced the question of whether or not something was “deeply rooted in American history and tradition” as a litmus test and came up with the most ridiculous answers. You really won’t find a single serious professional historian who would look at the justification for Dobbs and see anything but a brutally tendentious, ahistorical, bad-faith effort at cherry-picking – and both the American Historical Association and the Organization of American Historians came out and said so explicitly. On the flipside, when it comes to the Reconstruction Amendments, the “originalists” on the Court are demanding we completely ignore the very clearly stated intent of the Framers, who explicitly designed these amendments in order to dismantle the entrenched subjugation and discrimination of Black people, and instead pretend the Constitution is “colorblind.” And yet, despite “originalism” so clearly being an opportunistically deployed tool intended to generate whatever policy outcomes conservatives prefer, it has, at least until recently, been widely accepted by the liberal mainstream (including liberal justices on the Court!), legal academia, and mainstream Court coverage as a totally legitimate, coherent, intellectually serious enterprise – something that we all need to engage with and accept as the rules of the game. That is the trap you talk about – and my question is: Why have academics, journalists, and justices who are not part of the reactionary project walked so willingly into this trap? Why has the Right been so successful at implementing it?

MD: I think part of it is, as you mentioned, lawyers thinking that these are now the rules of the game and so this is how you have to play if you want to be taken seriously. There’s also a misplaced desire to beat conservatives at their own game. Recognizing how shoddy originalists’ use of history is, some liberals feel the urge to say “well, actually” and hit them with some real history. But this concedes the premise that history is the correct standard, and presupposes that originalists actually care about history and would be persuaded by different historical evidence. A similar presumption of good faith plagues media, too. Lawyers and journalists both frequently take for granted that the Court is worthy of the reverence with which it is usually treated.

Another contributing factor is institutional and financial support of conservatives in law schools. The Intercept published an article a few days ago documenting how Leonard Leo has donated tens of millions of dollars to law schools in recent years to create academic centers that further the conservative legal movement’s goals and legitimize the scholarship that they put out.

And, honestly, I think another reason is the timidity that often exists on the Left. The Right simply declared, baselessly, that originalism was the one legitimate way to approach law. Liberals don’t make those kinds of claims; sometimes they even act as if they need to apologize for the way they do law, as if it isn't equally or more valid. I think the Left should just own it and say full-throatedly that originalism is wrong and another interpretive method is correct.

TZ: Before we give in to despair and anger, I want to talk about what a different path forward might look like. In the book, you not only dissect the problem – you also offer a solution: inclusive constitutionalism. You not only reject the idea that the constitution’s meaning is fixed for all eternity and we are at the mercy of the wisdom of people who lived hundreds of years ago, that it is “dead, dead, dead,” as Antonin Scalia infamously said. Your inclusive constitutionalism goes well beyond the idea that the Constitution is a living, breathing document – please outline your vision for how we should treat it.

MD: I’m glad you mentioned the living Constitution idea. For folks who may be unfamiliar with the concept, living constitutionalism claims that the Constitution’s meaning does and should change. I think that’s correct, but it doesn’t actually tell us anything about how interpretation should change. And I wanted to provide an answer to that question. Inclusive constitutionalism argues that the Constitution should be interpreted in furtherance of inclusive democracy. 

We talked a bit earlier about the Reconstruction Amendments and how they transformed the whole Constitution. Yet the Court’s jurisprudence has basically never taken that transformation seriously. Some parts of the Constitution are, of course, quite specific – I’m not suggesting that the Constitution’s requirement that the president be at least “35 years old” means anything other than 35 years old. But much of the Constitution is written in broad and debatable terms, and we have to decide for ourselves what they actually mean today. Inclusive constitutionalism means that we should interpret the Constitution with the egalitarian and anti-subordination goals of the Reconstruction Amendments in mind. If we were actually serious about ensuring people could live with equal dignity, for example, we might understand the Fourteenth Amendment to include an affirmative right to education and housing. The whole point of the Constitution, as amended, is to facilitate the creation of a functioning, multiracial, inclusive democracy, and I think it’s high time we act like it.

TZ: I’m sure originalists will regard your suggestion as extreme and radical, but it’s really worth emphasizing how much your inclusive constitutionalism is in line with, and amplifies, the intent of the Reconstruction Amendments: There is, just like you say, no question that they were intended to finally make multiracial democracy happen in America. And if you take another two steps back, the animating spirit behind these amendments was to take the country closer to realizing the promise that “all men are created equal.” The question who gets to belong as equal has certainly defined the central fault line in American history, so I am not arguing that this hasn’t been contested at all times. But unless someone wants to argue that only white men belong, then we must acknowledge that our understanding of where to draw the boundaries has rightfully evolved over time. And the Reconstruction Amendments made it abundantly clear that our understanding ought to change towards a more inclusive vision. There is, in this sense, nothing extreme or radical about inclusive constitutionalism, while originalism constitutes a radically reactionary departure.   

Obviously, right now, this is a 6-3 Court, with a majority that proudly regards itself as originalist, meaning it is entirely willing to deploy originalism as a weapon in service of the broader reactionary mobilization against multiracial pluralism. They will, unfortunately, not be persuaded by your suggestions. We can’t know when this situation will change, as it depends on election results, and also on purely arbitrary factors that determine when a seat opens up. And yet, in the book, you are very clear that all those who prefer multiracial, pluralistic democracy should not just sit around and wait – there are things that we can do right now. You demand more from the liberal justices on the Court, from judges around the country, and you also tie your vision into a broader story of small-d democratic mobilization and resistance. Could you outline what you have in mind?

MD: I would love to see mass movements articulating a progressive vision of what the Constitution means and acting on it, without regard for what the Court says. That could include things like jurors refusing to convict people criminalized under anti-abortion laws because they believe abortion is a constitutional right. It could include pushing for state legislation directly at odds with Court rulings they oppose, as conservatives did with the enactment of trigger laws after Roe v. Wade. It could include judges confining harmful Court precedents to the facts of that particular case and ruling that an originalist decision shouldn't actually govern the outcome of the case at hand. There are innumerable tactics, many of which I detail in the book, but I think a common thread among past movements that successfully changed the Constitution’s meaning is a refusal to treat the Court as having the final word on the law, and creating opportunities to practically implement their view instead.

TZ: As we are exchanging questions and answers, Donald Trump was just convicted in New York City, Republicans are going crazy about it, Samuel Alito is aghast that anyone would dare to criticize him for, to put it mildly, displaying strong sympathies with an insurrectionist movement… We are about five months away from the election, and I am not going to ask you to make a prediction. But as we are coming to an end of our conversation, I would love for you to talk about your general sense of where things are going. What is your general perspective on the state of American democracy, on the prospects for a more inclusive, fairer pluralistic society? And, frankly, what is your personal strategy of handling the stress, frustrations, and anxieties of this current political moment?

MD: Oh boy. I definitely can’t predict what direction we’ll go in. But I do think we’re at a pivot point where great change is possible, as crises create opportunities. It’s also helpful for me to remember that people have always fought for and created fairer societies where other people thought none could exist. There have been too many victories throughout history, and in times at least as precarious as the present, for me to think that a better future is out of reach.

The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back is out now – and you should read it!