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WORK TITLE: The Originalism Trap
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WEBSITE: https://madibadennie.com/
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PERSONAL
Female.
EDUCATION:Princeton University, B.A., 2012; Columbia Law School, J.D., 2015.
ADDRESS
CAREER
Author, attorney, columnist, and professor. Deputy Editor and Senior Contributor at the critical legal commentary outlet Balls and Strikes; has taught at Western Washington University and NYU School of Law; former counsel to the New York City Council Committee on Public Housing; former counsel at the Brennan Center for Justice.
WRITINGS
Contributor to newspapers and magazines, including Washington Post, Atlantic, The Nation, and Balls and Strikes.
SIDELIGHTS
Madiba K. Debbie is an author, lawyer, and professor whose writing has been featured in outlets such as the Washington Post and Atlantic. A former counsel to the Brennan Center for Justice, she has also taught at the NYU School of Law, and is the Deputy Editor and Senior Contributor at Balls & Strikes, a legal commentary outlet. Her work focuses on fostering an equitable multiracial democracy. In 2024, she published her first book, The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back.
In The Originalism Trap, Dennie looks at the roots of originalism, a legal theory that holds there is only one way to interpret the Constitution, and that is by taking the original intent of the Founders in a literal fashion. Laws are bound by history in this argument, and any interpretation of the Constitution must be as that document was understood or intended at the time the Constitution was written.
In her book, Dennie argues that the true purpose of this doctrine is to enshrine conservative political views. The author traces the roots of originalism as a legal theory back to 1954 when the Supreme Court was hearing arguments on Brown v. Board of Education of Topeka. Though the Supreme Court rejected such arguments in that case, adherents to the doctrine doubled down in making it an acceptable legal argument: the only legitimate interpretation of the Constitution is by its original meaning at the time it was drafted.
By the 1986, the Supreme Court added an associate justice, Antonin Scalia, who was a proponent of originalism. Since then, more justices to the Supreme Court have argued cases by citing originalism. In 2022, originalism was the basis for Justice Samuel Alito’s Dobbs v. Jackson Women’s Health Organization opinion overturning Roe v. Wade. Dennie argues that originalism, rather than being a sound legal theory, is simply a way for conservatives to maintain power.
In her book, Dennie proposes an alternate legal theory: inclusive constitutionalism. This theory holds that the Constitution includes everyone, and thus its interpretation must always serve to make the idea of inclusive democracy real. Dennie also discusses in her book how lawyers and judges as well as the voting public can push back against originalism. A Kirkus Reviews critic had praise for The Originalism Trap, terming it an “urgent argument against the seemingly prevailing interpretation of the Constitution today, with no room for anyone but well-to-do white Americans.”
BIOCRIT
PERIODICALS
Kirkus Reviews, May 15, 2024, review of The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back.
ONLINE
ABAJournal, https://www.abajournal.com/ (June 5, 2024), Lee Rawles, review of The Originalism Trap.
American Civil Liberties Union website, https://www.aclu.org/ (June 3, 2024), “Madiba K. Dennie: Attorney and Author.”
Balls & Strikes, https://ballsandstrikes.org/ (June 3, 2024), “Madiba K. Dennie, Author.”
Brennan Center for Justice at NYU website, https://www.brennancenter.org/ (June 3, 2024), “Madiba Dennie: Counsel, Democracy Program.”
Madiba K. Dennie website, https://madibadennie.com, (June 3, 2024).
Ms., https://msmagazine.com/ (June 3, 2024), “Author: Madiba K. Dennie.”
Slate, https://slate.com/ (June 3, 2024), “MADIBA K. DENNIE.”
Author: Madiba K. Dennie
Madiba K. Dennie is counsel at the Brennan Center, with a particular focus on fair and equitable representation in our political process, as well as a columnist and professor committed to racial and gender justice. Her legal and political commentary has appeared in outlets including the Washington Post, The Nation, and Balls and Strikes. Find her on Twitter: @AudreLawdAMercy.
Madiba K. Dennie
AUTHOR
Link to Madiba K. Dennie's Twitter page at @AudreLawdAMercy
Madiba K. Dennie is the Deputy Editor and Senior Contributor at Balls & Strikes. Her writing has been featured in outlets including The Atlantic and The Washington Post. She has been interviewed on-air about race, gender, and the law on outlets including MSNBC and the BBC.
MADIBA K. DENNIE
Madiba K. Dennie is an attorney and the deputy editor and senior contributor at the critical legal commentary outlet Balls and Strikes. Her debut book, The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back, is now available for preorder.
Madiba K. Dennie
Attorney and Author
Pronouns: she/her/hers
Bio
Madiba K. Dennie is an attorney, columnist, and professor whose work focuses on fostering an equitable multiracial democracy. She is currently writing her debut book, forthcoming from Random House, about reclaiming the Constitution for the people. As a counsel at the Brennan Center for Justice, she provided legal and policy analysis regarding a range of democracy issues including the census, the courts, and attempts to disempower communities of color. Her legal and political commentary has been featured in The Atlantic, The Washington Post, Balls and Strikes, and more. She has taught at Western Washington University and NYU School of Law. She earned her law degree from Columbia Law School and her undergraduate degree from Princeton University, where she concentrated in Politics and earned a certificate in African-American Studies.
EXPERT, STAFF, FORMER
Madiba Dennie
Counsel, Democracy
Madiba Dennie served as counsel in the Brennan Center’s Democracy program. Her work focused on issues related to the 2020 Census, and advancing fair and equitable representation in our political process. Her legal and political commentary has appeared in outlets including The Washington Post and The Nation.
Prior to joining the Brennan Center, Dennie served as Counsel to the New York City Council Committee on Public Housing. Additionally, she provided services to low-income Black women who were survivors of domestic violence as a Kirkland & Ellis Public Service Fellow at Her Justice.
Dennie earned her JD from Columbia Law School and her undergraduate degree from Princeton University, where she concentrated in Politics and earned a certificate in African-American Studies.
Madiba K. Dennie is an attorney, columnist, and professor whose work focuses on fostering an equitable multiracial democracy. Her debut book, The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back, is now available for preorder. Dennie is the Deputy Editor and Senior Contributor at the critical legal commentary outlet Balls and Strikes. In her previous role as a counsel at the Brennan Center for Justice, she provided legal and policy analysis regarding a range of democracy issues including the census, the courts, and attempts to disempower communities of color. Her legal and political commentary has been featured in The Atlantic, The Washington Post, and more. Dennie has been interviewed on-air about race, gender, and the law on outlets including the BBC and MSNBC. She has taught at Western Washington University and NYU School of Law. She earned her law degree from Columbia Law School and her undergraduate degree from Princeton University, where she concentrated in Politics and earned a certificate in African-American Studies. Her hot takes are not legal advice.
QUOTE: “urgent argument against the seemingly prevailing interpretation of the Constitution today, with no room for anyone but well-to-do white Americans.”
Dennie, Madiba K. THE ORIGINALISM TRAP Random House (NonFiction None) $28.00 6, 4 ISBN: 9780593729250
An urgent argument against the seemingly prevailing interpretation of the Constitution today, with no room for anyone but well-to-do white Americans.
"The Declaration of Independence tells us that government legitimacy requires consent of the governed." So writes legal scholar Dennie, who maintains that this foundational tenet has been abandoned by a government active in disenfranchising the governed, especially minority voters and especially at the level of the judiciary. Many leading jurists subscribe to the theory of "originalism," which holds that if it's not in the Constitution as the Founders wrote it, then it's irrelevant. This leads to legal gymnastics, of course. There's no specific statement in the Constitution permitting gun control, allowing the Supreme Court to declare that regulation is beyond the law. However, "when it comes to regulating abortion, a lack of past regulation is no barrier to a legislative free-for-all in my uterus." Advocating for "inclusive constitutionalism," Dennie argues that the law is an evolving instrument--one that might recognize, for instance, that an AR-15 is not a flintlock--and that there's no compelling reason for the Supreme Court to engage in historicism in the first place. And yet, there we are, the Supreme Court maintaining that the Constitution is frozen in time and inalterable. More feats of gymnastics ensue: The Court argues that racial gerrymandering is "justiciable" while political gerrymandering is not, when in fact so much political gerrymandering is designed to disempower non-white voters. Originalism, Dennie concludes in this cogent text, keeps the nation "from achieving a functioning democracy," which would appear to be the point--and, she concludes, it will require a popular upswell of democratic activism, to say nothing of new laws and a new Court, to shake loose from originalism once and for all.
A compelling case for considering the Constitution as palimpsest and not Mosaic tablet.
Copyright: COPYRIGHT 2024 Kirkus Media LLC
http://www.kirkusreviews.com/
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Source Citation
MLA 9th Edition APA 7th Edition Chicago 17th Edition Harvard
"Dennie, Madiba K.: THE ORIGINALISM TRAP." Kirkus Reviews, 15 May 2024, p. NA. Gale General OneFile, link.gale.com/apps/doc/A793537262/ITOF?u=schlager&sid=bookmark-ITOF&xid=55074b8c. Accessed 24 May 2024.
The Originalism Trap' author wants to see originalism dead, dead, dead
BY LEE RAWLES
JUNE 5, 2024, 9:04 AM CDT
Originalism is the ascendant legal theory espoused by conservative legal thinkers, including the majority of U.S. Supreme Court justices. But far from being an objective framework for constitutional interpretation, says author and attorney Madiba K. Dennie, its true purpose is to achieve conservative political aims regardless of the historical record.
In The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back, Dennie traces the roots of originalism as a legal theory back to Brown v. Board of Education of Topeka, though the Supreme Court rejected the arguments in the 1954 case.
Its adherents argue that the meaning of the Constitution must solely be determined by “the original public meaning of the Constitution at the time it was drafted,” and that there is a discernible correct answer to what that meaning would have been.
The theory gained popularity in the 1980s, with the late Robert Bork and Justice Antonin Scalia as two influential proponents. Scalia famously said the Constitution is “not a living document. It’s dead, dead, dead.” Today, originalism has formed the basis for decisions such as Justice Samuel Alito’s Dobbs v. Jackson Women’s Health Organization opinion in 2022 overturning Roe v. Wade.
“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,” Dennie writes. “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).”
In this episode of The Modern Law Library podcast, Dennie and the ABA Journal’s Lee Rawles discuss how conservative originalists prioritize the time period of the Founding Fathers over the Reconstruction era that produced the 13th, 14th and 15th Amendments.
“We can’t fulfill the Reconstruction Amendments’ radical vision of full equality and freedom if we can’t be attentive to the ways in which we have been made unequal and unfree,” Dennie writes in The Originalism Trap.
While Dennie thinks that there are portions of the historical record that support broad civil liberty protections, she says she does not think that originalism is a useful tool for progressives to use as a legal framework.
In place of originalism, Dennie has a bold proposal: inclusive constitutionalism.
“Inclusive constitutionalism means what it says: the Constitution includes everyone, so our legal interpretation must serve to make the promise of inclusive democracy real. When the judiciary is called upon to resolve a legal ambiguity or when there are broad principles at issue, the application of which must be made specific, it is proper for courts to consider how cases may relate to systemic injustices and how different legal analyses would impact marginalized people’s ability to participate in the country’s political, economic and social life.”
Rawles and Dennie also discuss how lawyers and judges can push back against originalism, the legal rights and protections achieved by groups such as Jehovah’s Witnesses and the LGBTQ+ community, why she dropped Jurassic Park references into the book, and how she keeps an optimistic outlook on the expansion of civil liberties.
“Justice for all may not be a deeply rooted tradition,” Dennie writes. “But fighting for it is.”