• “Historical Fanfiction.” The Deceptive, Dangerous Simplicity of Originalism in American Politics

    Madiba K. Dennie on the Antiquated Conservatism Underpinning the United States’ Highest Courts of Law

    Lawyers don’t often admit this in mixed company, but I’ll let you in on a secret about interpreting the Constitution: there is no one objective way to interpret the Constitution. If there were, what would be the point of judges? We could resolve legal disputes by simply inputting our claims and evidence into a computer that would output uniform rulings. We don’t do that, though, because judging calls for…well, judgment.

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    A classic hypothetical law can show you what I mean: imagine a statute reading, “Vehicles are banned in the park.” One would have no trouble discerning that such a law would be broken by an adult wantonly driving a sports car over the public’s flowerbeds. But what about a child driving a toy convertible? Or a tourist riding a motorized scooter? Or a first responder driving an ambulance to an injured park-goer? Whether those are “vehicles” within the meaning of the law’s prohibition is debatable, so legal arbiters make judgment calls.

    Judgment is generally exercised in the American legal system through methods of constitutional interpretation. These methods tell us what should or shouldn’t be considered in order to figure out a law’s meaning. Judges need a fair and consistent way to determine what constitutional provisions mean and how to apply them in new and different cases. And “legal interpretative method” is a fancy way of saying “There’s a method to the madness.”

    There’s been considerable debate historically over what sources and analytical approaches form the best basis for judicial decision-making. Indeed, courts may and often do consider more than just one interpretative method in isolation; they call upon a variety of factors including judicial precedent (what courts have done), historical practices (what people have done), and of course, the text of the Constitution itself.

    But over the last forty years or so, the conservative legal movement has been wildly successful at promoting the idea that “originalism” is the only legitimate way to interpret the Constitution. The originalist method ostensibly determines constitutionality by relying on the original public meaning of the Constitution at the time it was drafted. Circumstances may evolve, but the Constitution’s meaning does not—or as former Supreme Court justice and fierce originalist Antonin Scalia famously put it, “It’s not a living document. It’s dead, dead, dead.”

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    Over the last forty years or so, the conservative legal movement has been wildly successful at promoting the idea that “originalism” is the only legitimate way to interpret the Constitution.

    The sales pitch for originalism goes a little like this: originalism is objective. We can know authoritatively what the Constitution means, its supporters argue, by discovering what it meant to the public when it was adopted. And, some say, this is what the Constitution’s ratifiers wanted—former solicitor general and one-time Supreme Court nominee Robert Bork once wrote that “only the approach of original understanding meets the criteria that any theory of constitutional adjudication must meet in order to possess democratic legitimacy. Only that approach is consonant with the design of the American republic.”

    So, if you want to know what rights you have, originalism commands you to consult a time capsule. Its proponents contend that to do otherwise is to lawlessly substitute your own policy preferences for the wisdom of the Founding Fathers.

    However, ironically enough, historical evidence suggests the Framers themselves did not want generations of Americans to be bound to their view of the document. Thomas Jefferson explicitly cautioned against excessive reverence of constitutions at the expense of societal progress, and further illuminated the absurdity by way of analogy. “We might as well require a man to wear still the coat which fitted him when a boy,” he wrote, “as civilized society to remain ever under the regimen of their barbarous ancestors.”

    Despite originalism’s reputation as a serious intellectual theory, it’s more like dream logic: it seems reasonable at first, but when you wake up, you can recognize it as nonsense. Originalism deliberately overemphasizes a particular version of history that treats the civil-rights gains won over time as categorically suspect.

    The consequences of its embrace have been intentionally catastrophic for practically anyone who isn’t a wealthy white man, aka the class of people with exclusive possession of political power at the time the Constitution’s drafters originally put pen to paper (or quill to parchment). By treating the Constitution as “dead,” originalism deliberately entombs historically marginalized groups’ legal claims to liberation.

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    There are levels to the intellectual dishonesty. Sometimes history surprises us. Yes, there’s a lot of bad, but it’s not actually all bad all the time. The period of radical reform following the Civil War is particularly noteworthy here. During Reconstruction, as this time is called, the country constitutionalized the emancipation of enslaved people and created federal safeguards to both protect their newly recognized freedom and affirmatively foster legal equality nation-wide. Mention this to originalists, though, and they’re suddenly stricken with memory loss.

    The Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution fundamentally changed the document for the better by dramatically expanding the sociopolitical community and—for the first time—seeking to build a multiracial democracy with equal membership for Black people and other marginalized persons.

    The Thirteenth Amendment formally abolished slavery, except as punishment for a crime. The Fourteenth Amendment created birthright citizenship, forbade states from violating certain rights of citizens and noncitizens alike (more on this later) and prohibited states from denying any person equal protection of law, limited the political power of insurrectionists, empowered Congress to legislatively enforce these provisions, and more. The Fifteenth Amendment established a nationwide prohibition on race-based denial or abridgment of the right to vote, and again gave Congress the power to legislatively enforce this command.

    These provisions, collectively known as the Reconstruction Amendments, embody a constitutional renunciation of the government-mandated political, economic, and social inferiority of Black people that had existed for the entire history of the United States. Contemporary thinkers and activists used these antislavery ideals to challenge oppressive conditions throughout society and pushed the country to reassess what it meant by “freedom.”

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    Professor Eric Foner, the preeminent historian of the Reconstruction era, tells us that the post–Civil War 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.

    The Reconstruction vision has revolutionary potential. This part of history is powerful. It is also not the part of history originalists care about. An academic analysis of how Congress members dis-cuss the Constitution shows that originalism’s chief advocates (Republicans) frequently invoke the Founding Fathers and the Framers’ Constitution but remain practically silent on the Reconstruction Amendments and their ratifiers.

    Instead, when originalists want to do a bad thing and the history isn’t on their side, they choose their favorite tidbits of the past and rewrite history until it is. Actual historians have decried this practice sometimes conducted by us attorneys as “law office history—a results-oriented methodology in which evidence is selectively gathered and interpreted to produce a preordained conclusion.” More simply, it’s cherry-picking.

    The formalizing of women’s second-class citizenship provides the most notorious illustration: when Justice Samuel Alito justified the decision to overturn Roe v. Wade, he did so in part by citing a famous seventeenth-century witch hunter and spousal-abuse apologist as a proper authority on women’s rights. You might hope that the prospect of curbing the rights of women based on the say-so of Sir Matthew Hale, whose contributions to the legal system include sentencing women to death as “witches” and establishing that men couldn’t be prosecuted if they raped their wives, would prompt some self-reflection.

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    Unfortunately for millions of Americans of reproductive age, it did not. The Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that pregnant people do not have a constitutional right to end their pregnancies—and as a result can be legally forced by the government to carry a pregnancy to term—in large part because some misogynists of yore regarded abortion as a criminal act.

    This was not the only view in centuries past, or even the dominant view, and prominent historical organizations submitted an amicus brief in Dobbs in an effort to set the record straight. (Amicus is shorthand for amicus curiae, which is Latin for “friend of the court,” meaning groups who file briefs to help courts make decisions even though they aren’t parties to a case. Lawyers love Latin.)

    When originalists want to do a bad thing and the history isn’t on their side, they choose their favorite tidbits of the past and rewrite history until it is.

    Actual experts said there was no evidence to support the claim that abortion was criminalized throughout pregnancy in early America. Rather, early Americans relied on a body of English precedents called “common law” that didn’t even recognize an abortion as occurring until a pregnant person could feel a fetus move, which could occur as late as the twenty-fifth week of pregnancy.

    Historians confirmed Roe’s conclusion that “American history and traditions from the founding to the post-Civil War years included a woman’s ability to make decisions regarding abortion, as far as allowed by the common law.” Justice Alito ignored the brief and asserted that there was an “unbroken tradition” of criminalizing abortion “from the earliest days of the common law to 1973.” This can be generously described as historical fanfiction.

    Thirty organizations signed on to a statement jointly released by the American Historical Association and the Organization of American Historians after the Dobbs ruling which expressed dismay that the Court referred to “history” dozens of times while refusing to take their expert historical claims seriously. The historians further observed that the Court robbed people of their fundamental rights by enshrining “misrepresentations…in a text that becomes authoritative for legal reference and citation in the future.”

    The alarming takeaway from Dobbs is that you do not have a constitutionally protected right if enough Supreme Court justices think, rightly or wrongly, that the right was contested when the country was founded. As Professor Khiara Bridges has explained,

    The existence of other perfectly plausible histories of abortion suggests that the Dobbs majority’s decision to elevate as right and true the historical account that it provides in its opinion is not the apolitical exercise that the majority pretends it to be. Instead, it is an exercise that is fraught with values, convictions, preferences, and, perhaps most of all, power.

    Originalism gives the judiciary extraordinary power to put historically marginalized people “back in their place” and buttress the country’s longstanding stratification of power and wealth. Judicial reliance on shoddy history lessons threatens myriad areas of law and the people who are subject to those laws. The Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen—and lower courts’ subsequent struggle to apply the high court’s ruling—provides a glaring example.

    In Bruen, the Court was asked to determine the constitutionality of a New York State law that made it a crime to possess a firearm without a license, and that limited licenses for concealed carry of handguns outside the home to individuals who could demonstrate a special need for self-protection distinguishable from that of the general community. To assess the legality of this gun-licensing regime, the Court’s conservative supermajority announced a brand-new originalist test, which (surprise, surprise) the law failed.

    Since the Court’s 2008 decision in District of Columbia v. Heller, the early originalist victory that first recognized an individual right to bear arms, courts have assessed the constitutionality of gun regulations by using a two-step framework. The first step looked at whether the conduct being regulated fell within the scope of the Second Amendment as historically understood, which means asking, “Would citizens in the founding generation have thought the Second Amendment protected the conduct being regulated by this law?”

    If the Second Amendment was implicated, the courts would move to a second step and evaluate the strength of the government’s justification for that regulation and how proportionate it was to the burden on the Second Amendment right. The second step is essentially judging whether a law has a small enough impact on the right at issue, for a good enough reason.

    Analysis of a law’s means and ends like this can be a good thing to consider when you live in a society with hundreds of millions of people whose rights and interests are sometimes in competition with one another; means–end scrutiny can help ensure that the needs of the public are not unreasonably subordinated to a maximalist interpretation of an individual right or freedom.

    But in Bruen, the Court decided this two-step test was—and I’m quoting here—”one step too many.” Instead, Justice Clarence Thomas wrote for the majority, courts can only look at the history. More specifically, they can only look at whatever historical snapshot the Court’s conservatives prefer; the gun law that the Court ruled unconstitutional was enacted by New York in 1911, making it over a hundred years old when it was struck down.

    One would assume a century on the books might pass historical muster. But Thomas wrote (seriously), “Not all history is created equal.” Some history that supported the regulation was ignored because it was before the Founding, which made it too early. Other history was too late. Some historical laws were too different from the New York statute. Other historical laws were similar but were outliers, and unrepresentative of the historical period.

    Basically, any history that supported the gun regulation didn’t count. But the history that allowed the Court’s conservatives to do what they wanted to in the first place? Just right. Prominent legal historians have criticized Bruen’s law-office history as “embarrassing” and chastised the Court for applying not “history, text, and tradition” but “fiction, fantasy, and mythology.

    Bruen’s à la carte approach to history is also stunning in juxtaposition to Dobbs, which was decided the very next day. In Bruen, the Court’s originalists said if a gun regulation did not exist in the past, it was because the regulation was constitutionally impermissible, and today’s laws can go no further. In Dobbs, the Court’s originalists said that the fact that an abortion regulation did not exist in the past has no bearing on whether the regulation is constitutionally permissible, and today’s lawmakers can prohibit abortion in any way they want.

    In these cases, the Court used the nonexistence of a law to support directly conflicting inferences about Congress’s power to legislate. It’s outrageous that, when it comes to regulating guns, the Supreme Court says, “If it was legal it would have been done by now,” but when it comes to regulating abortion, a lack of past regulation is no barrier to a legislative free-for-all in my uterus. Judicial bodies that don’t respect human bodies aren’t worthy of respect to begin with, but the least they could do is be internally consistent.

    The Goldilocks-esque reasoning in Bruen and Dobbs takes its cues from the policy preferences of the conservative legal movement rather than the principles of the Constitution. No constitutional clause says future would-be interpreters of the document must first walk a mile in a plantation owner’s shoes.

    There’s nothing that requires the Supreme Court to limit its inquiry to the Founding. The Court could just as easily consider how the law was interpreted over time, or—stick with me here—not lock themselves into a strictly historical analysis at all.

    It’s of the utmost importance that we recognize this, because rightwing legal elites act as though Moses himself descended from a mountaintop and hand-delivered a tablet to the Supreme Court onto which the fundamental originalist precept had been carved: “Things shall not be if they have not already been.”

    But constitutional interpretation is not set in stone. We are not bound to originalism’s selectively historical maneuvers and the abhorrent results they necessarily produce.

    Post-Bruen decisions have made it all too clear that the consequence of originalism’s makeshift historical standards is the endangerment of historically marginalized people. In United States v. Perez-Gallan, for instance, a Texas federal district court had to determine the legality of a gun regulation. The law makes it a federal crime for a person to possess a firearm if a court imposed a restraining order against them in protection of an intimate partner or child.

    The court heeded Bruen and reasoned that the constitutionality of the statute depended on “whether regulations prohibiting those subject to a protective order from possessing a firearm align with the Nation’s historical tradition of firearm regulation.” It’s painfully obvious that they do not: government intervention of any kind in response to domestic violence is largely a modern invention.

    The core function of originalism is providing aesthetically pleasing legal flourishes around the uglier idea that things shouldn’t get better than they’ve been.

    For much of American history, husbands had a legal right to beat their wives. The legal system did not move away from actively supporting spousal abuse until the late nineteenth century. And even then, family violence was often treated as an insufficiently serious harm to warrant government intrusion into the home for white families, and little more than an opportunity for the criminal legal system to inflict violence on communities of color.

    The Perez-Gallan court observed that “consistent examples of the government removing firearms from someone accused (or even convicted) of domestic violence” were “glaringly absent from the historical record—from colonial times until 1994.” As a result, the law was found unconstitutional.

    Women are five times more likely to be killed by an abusive partner when their abuser has access to a gun. But according to originalism, the state didn’t try to stop people from hurting women in the past, so it can’t try to stop people from hurting women in the present.

    The Fifth Circuit Court of Appeals exacerbated this ludicrous state of affairs in United States v. Rahimi. The Fifth Circuit is one of the thirteen federal appellate courts that sit below the Supreme Court and above the country’s district courts. Its jurisdiction covers Mississippi, Louisiana, and Texas, and it is often the last word on the law for the roughly thirty-seven million people who live in those states.

    Like the district court in Perez-Gallan, the circuit court in Rahimi had to rule on the constitutionality of a federal statute that bans gun possession for people who have protective orders against them. The Fifth Circuit had heard and rejected this exact challenge multiple times, concluding that the statute was reasonably adapted to the compelling government interest of reducing domestic gun violence.

    But the court was asked to reconsider its jurisprudence in light of Bruen. The court accepted the invitation to reevaluate its precedent and concluded that there was no sufficiently analogous law when the country was founded, so it struck the statute down.

    Even though there were historical statutes that prohibited gun possession for certain people, the court distinguished those laws away by highlighting that the Founding-era laws disarmed classes of people—specifically, Native Americans and enslaved Black people—in order to protect the discriminatory social order and prevent armed rebellion, while the statute in question disarmed people after individualized findings of credible threats to their partner or child.

    This rationale encapsulates the intellectual and moral bankruptcy of the originalist ideology. Rahimi concluded that intimate partner violence was not a constitutionally acceptable reason to place limits on gun possession and instead lifted up rank bigotry as the standard to which today’s gun laws must be held. Originalism observes that white supremacy dominated the country’s past and reasons that it must also dominate the country’s future.

    The Department of Justice petitioned the Supreme Court to review the Fifth Circuit’s decision, and the Court heard oral argument in United States v. Rahimi in November 2023. Soon it will have the opportunity to clarify how Bruen applies to statutes disarming people subject to orders of protection. Perhaps the Court will twist itself into an originalist pretzel to avoid further damaging its reputation by affirming the Fifth Circuit’s horrific reasoning. Perhaps not.

    The ominous implications of the district court’s decision in Perez-Gallan and the Fifth Circuit’s decision in Rahimi should make even the most ardent gun lovers nervous. Taking the Supreme Court’s jurisprudence seriously empowers lower courts to strip us of innumerable freedoms if they have any reason to think that we would have been unfree in early America.

    Originalism is regressive by nature: an outsized focus on the alleged original meaning of the Constitution at the time of drafting means the rights of modern-day individuals—and the ability of legislatures to protect those rights—must be constrained by the outdated concerns of the Framers, like keeping British soldiers out of their living rooms.

    Former justice Stephen Breyer’s dissenting opinion in Bruen spotlighted how originalism binds lawmakers from meeting the present needs of their constituents. Even if the justices were trained historians (which, remember, they aren’t), Breyer argued that “laws addressing repeating crossbows, launcegays, dirks, dagges, skeines, stilladers, and other ancient weapons will be of little help to courts confronting modern problems.”

    This, to be sure, was the plan all along. The originalist ideology declares that random historical windows of conservatives’ choosing are society’s high-water marks, and we are constitutionally powerless to surpass them without formal amendment. The core function of originalism is providing aesthetically pleasing legal flourishes around the uglier idea that things shouldn’t get better than they’ve been. And if originalism is left unchecked, things will keep getting worse.


    The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back - Dennie, Madiba K.

    Excerpted from The Originalism Trap copyright © 2024 by Madiba K. Dennie. Used by permission of Random House, an imprint and division of Penguin Random House LLC, New York. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.

    Madiba K. Dennie
    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.

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