The Originalism Trap

The Originalism Trap

How Extremists Stole the Constitution and How We the People Can Take It Back

About the Book

A rallying cry for a more just approach to the law that bolsters social justice movements by throwing out originalism—the theory that judges should interpret the Constitution exactly as conservatives say the Founders meant it

“The greatest trick conservatives ever pulled was convincing the world that originalism exists. This book is vital for understanding why the world sucks right now.”—Elie Mystal, author of Allow Me to Retort

There is no one true way to interpret the Constitution, but that’s not what originalists want you to think. They’d rather we be held hostage to their “objective” theory that our rights and liberties are bound by history—an idea that was once confined to the fringes of academia. Americans saw just how subjective originalism can be when the Supreme Court cherry-picked the past to deny bodily autonomy to millions of Americans in Dobbs v. Jackson Women’s Health. Though originalism is supposed to be a serious intellectual theory, a closer look reveals its many inherent faults, as it deliberately over-emphasizes a version of history that treats civil rights gains as categorically suspect. According to Madiba K. Dennie, it’s time to let it go.

Dennie discards originalism in favor of a new approach that serves everyone: inclusive constitutionalism. She disentangles the Constitution’s ideals from originalist ideology and underscores the ambition of the Reconstruction Amendments, which were adopted in the wake of the Civil War and sought to build a democracy with equal membership for marginalized persons. The Originalism Trap argues that the law must serve to make that promise of democracy real.

Seamlessly blending scholarship with sass and written for law people and laypeople alike, The Originalism Trap shows readers that the Constitution belongs to them and how, by understanding its possibilities, they can use it to fight for their rights. As courts—and the Constitution—increasingly become political battlegrounds, The Originalism Trap is a necessary guide to what’s at stake and a vision for a more just future.
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Praise for The Originalism Trap

“Madiba Dennie has written a magnificent book that shows how conservatives, through the guise of originalism, have taken away our rights and undermined equality. She offers a powerful alternative, inclusive constitutionalism, that provides a way forward to reclaim the Constitution and advance freedom and justice.”—Erwin Chemerinsky, dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley, School of Law and author of We the People

“Madiba Dennie has written a devastating indictment of the false facade of originalism. Full of sharp observations and delightful humor, it is an important contribution.”—Russell Feingold, former U.S. Senator and president of the American Constitution Society

“And just when we most need her, along comes Madiba K. Dennie—one of our most brilliant young legal voices. For anyone feeling helpless about a newly monarchic court that has stripped so much from so many, this book is a reminder that ordinary people have always had the power to reshape justice, and that the time to do so is right now.”—Dahlia Lithwick, senior legal correspondent for Slate and New York Times bestselling author of Lady Justice

“The greatest trick conservatives ever pulled was convincing the world that originalism exists. This book exposes how unwashed segregationist theories have been rebranded, repackaged, and sold back to you as a theory of constitutional interpretation. It is vital for understanding why the world sucks right now.”—Elie Mystal, New York Times bestselling author of Allow Me to Retort

“The Originalism Trap strips originalism’s thin intellectual veneer, revealing an all-out attack on civil rights and social progress. This clear, occasionally hilarious, and fascinating book is a call to action for those of us who believe that inclusive constitutionalism can help beat back the authoritarian right.”—Victor Ray, author of On Critical Race Theory

“An accessible and devastating critique of both originalism and the Roberts Court, this book is a must-read for anyone interested in learning how the Supreme Court has used originalism as a weapon while disregarding the Constitution’s potential to provide equality of opportunity, fairness, and dignity for all people.”—Eric J. Segall, author of Originalism as Faith
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About the Author

Madiba K. Dennie
Madiba K. Dennie is the deputy editor and senior contributor at the critical legal commentary website Balls and Strikes, the co-director of the Democracy Committee of the New Jersey Reparations Council, and was previously a counsel at the Brennan Center for Justice. Her legal and political commentary has been featured in The Atlantic, The Washington Post, and elsewhere, and she has been interviewed on the BBC, MSNBC, and other media outlets. She has taught at Western Washington University and New York University School of Law. Dennie is a graduate of Columbia Law School and Princeton University. The Originalism Trap is her first book. More by Madiba K. Dennie
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