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
Could not agree more with Ms. Dennie's idea of "a refusal to treat the Court as having the final word on the law, and creating opportunities to practically implement their view instead". the Court claimed the right of judicial review in Marbury v. Madison, despite the fact that it is not in the Constitution. Legislatures and executives need to say, "we do not recognize the Court's authority to rule on questions of constitutionality, and will disregard this ruling accordingly". Let them set up a court specifically to rule on constitutional questions, and let the Supreme Court be the court of last appeal. and then let them rotate judges in and out of both courts on staggered terms.
Thank you for an enlightening & refreshing interview. I realized recently that I needed uplifting & this newsletter & interview was exactly what I needed. I will look for the book & buy 2, one for me & one for our granddaughter in grad school studying law at Cornell University.
This is great. Very much appreciated. A thought on the return of human enslavement: they definitely don't want that. It's wise to take care of your property. They stopped wanting human enslavement after the 13th allowed them to use convict leasing. They combined that with perverting sharecropping to someone more akin to feudalism than anything else.
I’ve been pestering my local library to preorder this book since I heard Ms. Dennie on a podcast a few weeks ago.
Great interview. I wish more Americans understood we don’t have to just roll over and accept this court’s attempt to relegate us all back to the 1780s, except with machine guns for self defense and the right to free speech meaning you can now pass lies around the globe in milliseconds. :P
The saddest thing I think is the number of Americans who think supporting this undemocratic enterprise is in their own best interests.
This interview was super informative, it's great to learn about the historical origins of originalism to make a more accurate interpretation of the movement. :)
One question i've been pondering is about the legal foundation of originalism since it appears axiomatic, but is actually quite flimsy. How do proponents of originalism square this circle?
It seems to me that there is an inherent paradox to originalism since the words of the constitution do not establish the doctrine of judicial review. If judicial review was plainly evident from the words of the constitution, it would not have required the precedence set in Marbury v. Madison, where the supreme court interpreted the supremacy clause as granting judicial review to the courts.
Perhaps originalism posits that judicial review is a plainly evident power granted to the supreme court by the constitution as commonly understood at the time. Then why would an early court (the justices being contemporaries of the framers) deem it necessary to clarify an issue that was commonly understood at the time. And why is their legal justification based on an interpretation of the supremacy clause and legal reasoning to arrive at the necessity of judicial review for functioning federalism. Wouldn't the correct legal interpretation find a justification closer to the words of the text, without getting into the reasons why the application of judicial review is necessary?
If judicial review is established in the constitution but Marbury v. Madison is meritless according to an originalist interpretation, can an originalist justice cite Marbury v. Madison, or other decisions that build on it? Are originalist justices obliged to issue a new ruling (re-)establishing judicial review based a legal justification with merit? If not, are they ignoring the text of the ruling in favor of an interpretation that finds the ruling valid even if the legal justification is flawed? Because that sounds like judicial activism.
It is judicial activism. Originalism is just a convenient manufactured veneer of legitimacy that attempts to limit our current beliefs, attitudes, rights, and responsibilities to those of our “barbarous ancestors” as Jefferson once put it.
America’s legacy of white supremacy and subjugation of women and minorities was baked into the cake until the 14th amendments fundamentally improved the recipe towards greater equity and freedom. The originalists prefer the version where rights are limited and the white and wealthy maintain a privilege to own and control others. They’re essentially making the argument that we HAVE to have a racist, patriarchal, system with limited protections and rights for anyone who isn’t a wealthy (faux Christian) white guy, because that’s basically the original system this country was founded under.
What a convenient status quo to adhere to if you’re a wealthy white guy who does think you deserve to own and control everything.
Great and insightful interview. It really amazes the extent to which American conservative legal movement has succeeded in promoting and legitimizing "originalism" as a valid legal theory. The whitewashed version of American history where the "Founding Fathers" are mystified and glorified as great leaders also plays role in this legitimization and promotion: "We are just interpreting Constitution as Our Great Founding Fathers intended it to be interpreted".
Excellent analysis and insights. I'm definitely moving that book up on my list. I recently read Tyranny of the Minority, which does a great job detailing the counter-majoritarian institutions in the U.S. vs the rest of the world (my thoughts here https://bathruminations.substack.com/p/tyranny-of-the-minority). My only minor disagreement is with the introduction when you state "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." I don't believe that a stable democratic system can (or should) exist, and I believe that democratic self-governance actually does rely on more people being alert, aware, and practicing democracy on a regular basis.
I certainly see your point and agree that it would be nice to not worry about losing rights, but I think that a much better democratic system than we have today would necessarily be changing (as you go on to point out in the idea of the living/inclusive constitution, and it would necessarily require and structurally encourage people to be alert to and empowered in the regular decision-making that affects their lives.
I very much enjoyed your exchange of letters TZ and MD and glad to learn of The Originalism Trap and its publication tomorrow demystifying originalism with respect to its origins, application, and as a valid interpretation of the Constitution--such a book was well past due. Congratulations on your first book that should quickly become a best seller.
No disagreements whatsoever with the Constitution as a living document and with your inclusive Constitutionalism and with your call for people doing what they can to transform the Court and with the non-originalists layers and judges and justices opposing rather than legitimizing this bogus way of interpreting and making law.
Relatedly, Jamie Raskin wrote an op ed in The New York Times on Sunday explaining that "Justices Alito and Thomas Could Be Recused" --who knew? -- if the other seven justices according to the Constitution would only push the issue. While that could work with the three "liberal" justices why would the remaining four conservative justices push the recusal issue because of the appearances of biases when they more or less are originalists too, share the same unethical biases, and are pushing the same pre- reconstruction agenda?
Ergo, it seems to me that short of amending the Constitution, undoing recent SC decisions such like Citizens United or Dobbs, instituting term limits instead of lifetime appointments, changing the current selection process, doing away with the Electrical College, and moving to a multiparty inclusive democracy to name the most obvious reforms, that the originalism trap will remain in place for at least another generation or more. And that is assuming the best and that Trump does not become the 47th president.
Theologian by training here - the parallels between biblical originalism and legal originalism are remarkable. Originalism eventually turns inward upon itself; it will argue who amongst its interpreters has the “purest” interpretation of the so-called original meaning of a text.
I’m sorry to say that within churches this path does not end well. It has, at this point, led to 1) fervent keepers of the truth who attract large audiences who think they are in the right , 2) a shrinking number of churches who believe that ethos (in the Christian case, love) interprets text, and 3) massive growth in colonial efforts in an effort to spread their gospel.
If there is an epistemological parallel, then Americans must successfully do constitutionally what it has failed to do religiously - have the more human approach win the day.
What a great interview and thank you for letting us know about The Originalism Trap. Although I'm not an attorney, even I can see the obvious inconsistencies when the conservative majority on the Supreme Court cherry pick from history to find examples to support their conclusions. Being a woman, I'm well aware that I was not considered in the Constitution and I have no intention of going back to those days. There is systemic misogyny, racism, gender bias, religious bias and xenophobia in US institutions and we all need to work to change this.
Could not agree more with Ms. Dennie's idea of "a refusal to treat the Court as having the final word on the law, and creating opportunities to practically implement their view instead". the Court claimed the right of judicial review in Marbury v. Madison, despite the fact that it is not in the Constitution. Legislatures and executives need to say, "we do not recognize the Court's authority to rule on questions of constitutionality, and will disregard this ruling accordingly". Let them set up a court specifically to rule on constitutional questions, and let the Supreme Court be the court of last appeal. and then let them rotate judges in and out of both courts on staggered terms.
Thank you.
Thank you for an enlightening & refreshing interview. I realized recently that I needed uplifting & this newsletter & interview was exactly what I needed. I will look for the book & buy 2, one for me & one for our granddaughter in grad school studying law at Cornell University.
This is great. Very much appreciated. A thought on the return of human enslavement: they definitely don't want that. It's wise to take care of your property. They stopped wanting human enslavement after the 13th allowed them to use convict leasing. They combined that with perverting sharecropping to someone more akin to feudalism than anything else.
I’ve been pestering my local library to preorder this book since I heard Ms. Dennie on a podcast a few weeks ago.
Great interview. I wish more Americans understood we don’t have to just roll over and accept this court’s attempt to relegate us all back to the 1780s, except with machine guns for self defense and the right to free speech meaning you can now pass lies around the globe in milliseconds. :P
The saddest thing I think is the number of Americans who think supporting this undemocratic enterprise is in their own best interests.
This interview was super informative, it's great to learn about the historical origins of originalism to make a more accurate interpretation of the movement. :)
One question i've been pondering is about the legal foundation of originalism since it appears axiomatic, but is actually quite flimsy. How do proponents of originalism square this circle?
It seems to me that there is an inherent paradox to originalism since the words of the constitution do not establish the doctrine of judicial review. If judicial review was plainly evident from the words of the constitution, it would not have required the precedence set in Marbury v. Madison, where the supreme court interpreted the supremacy clause as granting judicial review to the courts.
Perhaps originalism posits that judicial review is a plainly evident power granted to the supreme court by the constitution as commonly understood at the time. Then why would an early court (the justices being contemporaries of the framers) deem it necessary to clarify an issue that was commonly understood at the time. And why is their legal justification based on an interpretation of the supremacy clause and legal reasoning to arrive at the necessity of judicial review for functioning federalism. Wouldn't the correct legal interpretation find a justification closer to the words of the text, without getting into the reasons why the application of judicial review is necessary?
If judicial review is established in the constitution but Marbury v. Madison is meritless according to an originalist interpretation, can an originalist justice cite Marbury v. Madison, or other decisions that build on it? Are originalist justices obliged to issue a new ruling (re-)establishing judicial review based a legal justification with merit? If not, are they ignoring the text of the ruling in favor of an interpretation that finds the ruling valid even if the legal justification is flawed? Because that sounds like judicial activism.
It is judicial activism. Originalism is just a convenient manufactured veneer of legitimacy that attempts to limit our current beliefs, attitudes, rights, and responsibilities to those of our “barbarous ancestors” as Jefferson once put it.
America’s legacy of white supremacy and subjugation of women and minorities was baked into the cake until the 14th amendments fundamentally improved the recipe towards greater equity and freedom. The originalists prefer the version where rights are limited and the white and wealthy maintain a privilege to own and control others. They’re essentially making the argument that we HAVE to have a racist, patriarchal, system with limited protections and rights for anyone who isn’t a wealthy (faux Christian) white guy, because that’s basically the original system this country was founded under.
What a convenient status quo to adhere to if you’re a wealthy white guy who does think you deserve to own and control everything.
Great and insightful interview. It really amazes the extent to which American conservative legal movement has succeeded in promoting and legitimizing "originalism" as a valid legal theory. The whitewashed version of American history where the "Founding Fathers" are mystified and glorified as great leaders also plays role in this legitimization and promotion: "We are just interpreting Constitution as Our Great Founding Fathers intended it to be interpreted".
Excellent analysis and insights. I'm definitely moving that book up on my list. I recently read Tyranny of the Minority, which does a great job detailing the counter-majoritarian institutions in the U.S. vs the rest of the world (my thoughts here https://bathruminations.substack.com/p/tyranny-of-the-minority). My only minor disagreement is with the introduction when you state "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." I don't believe that a stable democratic system can (or should) exist, and I believe that democratic self-governance actually does rely on more people being alert, aware, and practicing democracy on a regular basis.
I certainly see your point and agree that it would be nice to not worry about losing rights, but I think that a much better democratic system than we have today would necessarily be changing (as you go on to point out in the idea of the living/inclusive constitution, and it would necessarily require and structurally encourage people to be alert to and empowered in the regular decision-making that affects their lives.
I very much enjoyed your exchange of letters TZ and MD and glad to learn of The Originalism Trap and its publication tomorrow demystifying originalism with respect to its origins, application, and as a valid interpretation of the Constitution--such a book was well past due. Congratulations on your first book that should quickly become a best seller.
No disagreements whatsoever with the Constitution as a living document and with your inclusive Constitutionalism and with your call for people doing what they can to transform the Court and with the non-originalists layers and judges and justices opposing rather than legitimizing this bogus way of interpreting and making law.
Relatedly, Jamie Raskin wrote an op ed in The New York Times on Sunday explaining that "Justices Alito and Thomas Could Be Recused" --who knew? -- if the other seven justices according to the Constitution would only push the issue. While that could work with the three "liberal" justices why would the remaining four conservative justices push the recusal issue because of the appearances of biases when they more or less are originalists too, share the same unethical biases, and are pushing the same pre- reconstruction agenda?
Ergo, it seems to me that short of amending the Constitution, undoing recent SC decisions such like Citizens United or Dobbs, instituting term limits instead of lifetime appointments, changing the current selection process, doing away with the Electrical College, and moving to a multiparty inclusive democracy to name the most obvious reforms, that the originalism trap will remain in place for at least another generation or more. And that is assuming the best and that Trump does not become the 47th president.
Your thoughts TZ or MD.
Theologian by training here - the parallels between biblical originalism and legal originalism are remarkable. Originalism eventually turns inward upon itself; it will argue who amongst its interpreters has the “purest” interpretation of the so-called original meaning of a text.
I’m sorry to say that within churches this path does not end well. It has, at this point, led to 1) fervent keepers of the truth who attract large audiences who think they are in the right , 2) a shrinking number of churches who believe that ethos (in the Christian case, love) interprets text, and 3) massive growth in colonial efforts in an effort to spread their gospel.
If there is an epistemological parallel, then Americans must successfully do constitutionally what it has failed to do religiously - have the more human approach win the day.
What a great interview and thank you for letting us know about The Originalism Trap. Although I'm not an attorney, even I can see the obvious inconsistencies when the conservative majority on the Supreme Court cherry pick from history to find examples to support their conclusions. Being a woman, I'm well aware that I was not considered in the Constitution and I have no intention of going back to those days. There is systemic misogyny, racism, gender bias, religious bias and xenophobia in US institutions and we all need to work to change this.