The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back

A searing account of how the Supreme Court wields the concept of originalism--the theory that the Constitution should be interpreted as exactly as the Founders meant it--as a tool to extinguish social justice movements and a rallying cry for a better future, from an acclaimed civil rights lawyer and journalist

Lawyers don’t often admit this in mixed company, but Madiba Dennie wants to let you in on a secret: There is no one true way to interpret the Constitution. Americans saw just how subjective it can be when the Supreme Court denied basic bodily autonomy to millions of people in its Dobbs v. Jackson Women's Health Organization decision, suggesting that our rights and liberties are frozen in a cherry-picked version of history. This is a line of constitutional interpretation called originalism--a framework that says we must be constrained by the meaning of the Constitution's text when it was written. It has a reputation as a serious intellectual theory, but as Dennie argues in The Originalism Trap, originalism is more like dream logic: It seems reasonable at first, but when you wake up and see it clearly, it's revealed as nonsense. Originalism deliberately over-emphasizes a particular version of history that treats civil rights gains as categorically suspect. According to Dennie, it's time to let it go. 

The Originalism Trap discards originalism in favor of a new approach that serves everyone: inclusive constitutionalism. Dennie disentangles the Constitution's ideals from originalist ideology and emphasizes the power of the Reconstruction Amendments. These post-Civil War amendments, which are conveniently ignored by originalists, 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. In chapters on how originalists are diminishing our right to vote, stealing the right to control our own bodies, and manipulating the way we are counted in the census, Dennie shows readers that the Constitution belongs to them and how 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.