Originalism is the Southern Strategy of Our Courts

All we want for Christmas is a new Supreme Court. Here to tell us how we get there is legal scholar Madiba Dennie, author of The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back.

What’s “originalism”? It’s white supremacy’s answer to the Civil Rights Movement, every bit as sneaky and immoral as Republican operative Lee Atwater’s “Southern Strategy,” which mobilized racist voters through racist dog whistles instead of open slurs. Originalism sounds fancy by design, but it’s pure fascist gaslighting, now wielded by the trash MAGA majority on the Supreme Court.

Gaslit Nation’s holiday gift to our listeners this year is to remind you of an inconvenient fact the media ignores: Donald Trump came to power in 2016 with the Kremlin’s very illegal help, as documented in both the Mueller Report and the bipartisan U.S. Senate Select Committee on Intelligence report on Russian Active Measures Campaigns and Interference in the 2016 U.S. Election. That makes him an illegitimate president, which means his extreme Supreme Court picks should be impeached. More on that in part two of our discussion, coming Thursday.

Thank you to everyone who joined our holiday party on Monday. As requested, the link to the Outreach Committee for listeners interested in discussing ways to reach current or former MAGA cult members and help guide them back toward the light is available in the show notes on Patreon.

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Andrea Chalupa (00:10):

Welcome to Gaslit Nation. I am your host, Andrea Chalupa, a journalist and filmmaker and the writer and producer of the journalistic thriller, Mr. Jones, about Stalin's genocide famine in Ukraine, the film The Kremlin doesn't want you to see, so be sure to watch it.

(00:24):

This holiday season, all we want for Christmas is a new Supreme Court. Here to help us make sense of the gaslighting coming out of today's Supreme Court is Mediba Dennie. Mediba Dennie, author of The Originalism Trap: How Extremists Stole the Constitution and How We, The People, Can Take It Back. Dennie is the deputy editor and a senior contributor at the critical legal commentary site, Balls and Strikes, and a former council at the Brennan Center for Justice. And she taught at Western Washington University and NYU School of Law. Welcome to Gaslit Nation.

(01:03):

Now, originalism is one of the greatest tricks conservatives ever pulled. Could you unpack exactly what originalism is and how it's wreaking havoc on our democracy today?

Madiba Dennie (01:17):

Yeah, for sure. And thanks so much for having me on here to explain this and to give at least a tantelizing view for people's Christmas wish. I say, "Here's the Supreme Court we have, but here's what we could have instead." So let's talk about what we have.

(01:32):

Originalism is the main model that the conservative legal movement has promoted for constitutional interpretation. And so this is something that has been adopted and embraced by the conservative justices on the Supreme Court, more or less. I say more or less because if it takes you to some less convenient results, then suddenly originalism stops. But usually they're interested in promoting this idea of originalism, which says that the meaning of the Constitution is fixed in time. It's frozen at the moment of enactment. And however they claim the public originally understood the Constitution then when it was first written and adopted, that's how we still have to understand it today.

(02:18):

So that original interpretation governs. That is the sort of Cliff Notes version of what originalism is. There are a couple variations on this theme, but that central point about the meaning can't just change. The meaning remains the same from hundreds of years ago. That's the sort of core idea of originalism. And I think this is something that might seem reasonable on its face if you don't think about it too long. If you're like, "Oh, okay. Yeah, sure. These guys wanted it to mean something, so whatever they thought it meant is what it means, fine." But that overlooks a lot. And one of the biggest, most problematic things that it overlooks is that the way a lot of the Constitution was understood then, much of America was much worse off. The conservative legal movement presents originalism as if it's this unbiased idea when really it's just baking in all of the biases of the 18th century.

(03:17):

So all of the power dynamics of that time, all of the racial hierarchies, all of the gender hierarchies, they're all sort of built into originalism and saying that we have to reproduce that historical standard. It sort of takes away our democratic ability to think about the laws that govern us and have a say over how we rule ourselves and sort of take us back in time. I like to think of originalism as make America great again with a law degree.

Andrea Chalupa (03:47):

Yeah. It very much sounds like something that was made up in a backroom somewhere. So with Lee Atwater, a hardcore Republican operative who came up with Roger Stone, Paul Manafort, they were like the young college Republicans of the Nixon and Reagan era that laid the groundwork for the Republican Party's Frankenstein monster, Donald Trump, with their greed is good and deregulation lawlessness and so on. Now, Lee Atwater had a famous strategy, the Southern Strategy. You got to just have your racist dog whistles out there, and that's what helped Nixon. Was originalism basically, is it like the Southern Strategy of the legal minds of the Republican Party? What was the origin story of this con job?

Madiba Dennie (04:32):

That is a great way to put it, just sort of a jurisprudential version of the Southern Strategy. I think you see this really clearly when you look at Brown v. Board of Education because history had often been a factor in thinking about what the Constitution means or should mean, but no one was really saying it should be the only factor until after the Supreme Court decided Brown v. Board of Education. So the Supreme Court says in Brown v. Board that segregated schools are unconstitutional and they explicitly rejected the idea of basing their interpretation solely on what the founders may have thought. They said, "Yeah, it's possible that the framers who wrote the 14th Amendment didn't think it would restrict the ability of states to have segregated schools if they wanted to. Maybe the history is not actually super clear on that, but regardless, we don't think that should be the sole deciding factor." The court says that in Brown v. Board.

(05:32):

So all the Congress people who were unhappy about Brown v. Board were then like, "Whoa, whoa, whoa, this is illegitimate. You can't just be going away from what the founders said." So they put forth this statement, which listeners might be familiar with as the Southern Manifesto, the sort of formal title, it's Declaration of Constitutional Principles. And in that statement, they said that the court's decision in Brown v. Board was constitutionally wrong because it was not what the founders had originally thought the 14th Amendment meant. So that I think is the critical backdrop and really sort of shows this Southern strategy idea you're talking about where they're like, "How do we come up with a good legal sounding way to be pro- segregation? How do we dress up and constitutionalize our own bigotry?" And the way that they did this was by saying the court is supposed to make decisions based off of what they thought when the Constitution was being written.

(06:39):

They didn't do that in Brown v. Board, so Brown v. Board is bad. That was what they did. So that is our sort of origin story of originalism as we understand it now.

Andrea Chalupa (06:51):

So basically schools were getting segregated, which required the National Guard to come in and American soldiers to actually do their public service of protecting innocent lives, civilians, including non-white children going to school, not picking up litter around Washington DC and trying to intimidate the American people and create a moat around Donald Trump and the voters. All of this is extraordinary. And I know you're a lawyer and you lawyers find all this stuff, like some of the terms you're using as very sexy, but it also sounds like they're weaponizing being boring. You know what I'm saying? They're making it sound very complicated and using all this phrasing that just makes my mind turn off.

Madiba Dennie (07:34):

Right. No, I think that is so insidious. I think it is definitely a advantage for the conservative legal movement and dressing stuff up in the legalese and using the words that make normal people just tune out. Or if they're not tuning out, they're assuming that the people using those words know better. They say, "Oh, okay, this is something I'm not familiar with. I don't have the same sort of legal fluency." These guys went to law school, these guys could be judges or congresspeople. They probably know better than me about what all this really means. But no, they often do not.

Andrea Chalupa (08:13):

It's all bullshit. What you're describing is

Madiba Dennie (08:16):

It's all bullshit.

Andrea Chalupa (08:17):

Straight up bullshit. And the fact that it's created such a massive movement of gaslighting, how influential could you put numbers or give us some specifics in terms of the influence, the reach that the gaslighting of quote unquote originalism now has?

Madiba Dennie (08:34):

Well, I think one way to think about the reach in a sort of quantitative way would be all of the people who have been forced to give birth because of Dobbs, which was a decision sort of grounded in originalist rationale. Justice Samuel Alito wrote that opinion and basically said, "I don't see enough historical evidence that women had rights then, so women don't have rights now." I'm paraphrasing. That is the medieva interpretation of what Sam Alito said.

Andrea Chalupa (09:10):

Well, the guy had a January 6th flag hanging on his home, so it's hard to tell whether you're being that very well could have been his exact phrasing.

Madiba Dennie (09:20):

Yeah. It can be challenging to be sarcastic when the thing you're lampooning is already so far out there. I can be a little bit facetious how I'm characterizing this broadly, but no, that does sound like some shit he would say, doesn't it?

Andrea Chalupa (09:38):

Probably does. So what are their clubs like the Federalist Society, Yale Law School? So this circulates among their clambake parties.

Madiba Dennie (09:51):

Right, basically. It's an idea that they really work to develop and popularize with all the Federalist Society chapters across all of these schools. They promoted it among judges. They got this cottage industry of law professors willing to crank out terrible articles to sort of try add legitimacy to these ideas. And a really big help was getting the Reagan Justice Department. Ronald Reagan's Justice Department basically operated like an originalism think tank, cranking out white papers saying, "This is the proper originalist way."

Andrea Chalupa (10:28):

White white papers, sorry.

Madiba Dennie (10:30):

Yeah. But yeah, they would adopt their official position that originalism was the right way to understand the Constitution, and that was the way they were going to pursue their cases. And they really worked to ... They got people in the right places and they kept popularizing the idea. And now, just a few short decades later, we have a Supreme Court that is dominated by self-styled originalist.

(10:57):

Now, I think that if you talk to some of the original originalists, as it were, some of the folks who were there in the '70s, '80s, as they were beginning to popularize this idea, it was a really small group then. This used to be fringe. So it's not as if this is mainstay has been the way this is how things were and will be. No, this is actually pretty recent, ironically enough for an idea that's so wrapped up in history, but it is something that they have had just a lot of success pushing into the mainstream, just moving that Overton window, confirming judges who agree with originalism.

(11:37):

And now a lot of the country is suffering the consequences. When you say that our decision has to be chained to a time when a lot of people were literally in chains, that isn't going to serve the country well. A lot of people are going to be left behind. And I would contend that's by design. I would say that's why originalism exists to provide this legal veneer over your regular degular bigotry.

Andrea Chalupa (12:03):

As you were talking, I was thinking of Ava DuVernay's brilliant documentary 13th, where it shows the far right conservative organization, ALEC, which is a lawfare factory pumping out laws to chip away at our rights, to chip away and weaken unions and roll back regulations and on and on the list goes and expand policing and anti-immigration militarization. ALEC is like a Fox News factory pumping out legislation that's just copy pasted across all of these state governments, across the United States that are Republican majority because of state gerrymandering and they just rubber stamp these ALEC sweatshop produced laws. And so you're telling me they have the same machinery to pump out sludge, pushing the gaslighting of originalism.

Madiba Dennie (13:02):

Yeah. Yeah, 100%. I think it is something that the right wing has done very effectively is getting this sort of churn of all of its ideas, getting this sort of mass reproduction, this kind of astro turfed, getting their ideas in these places. This isn't any sort of natural upswell. People have been thinking this. No, this is something they wanted people to think. They wanted these laws in place. They wanted this type of jurisprudence and so they pushed it relentlessly, got a lot of people to do a lot of pushing, and now it's the law of the land.

Andrea Chalupa (13:38):

Wow. So Fox News Court came through the originalism trap. Obviously, the question on our listener's mind and my mind is, how far are they willing to go? If you go back to America during the time of the Constitution when it was written, which is what originalism is pushing for, people that look like you were enslaved, people that look like me, and I couldn't vote, I couldn't open a bank account, I was my husband's property. Is that where they're taking us?

Madiba Dennie (14:05):

Well, it's been not taking us any place good. I think there are some open questions about just how far they're willing to go, but they certainly are willing to go farther than you or I would be comfortable with and I think surprisingly far. So there was a case decided recently in a lower court. It was about whether or not non-citizens could have guns in the United States and the court basically said, "No, we don't think that the Second Amendment applies to non-citizens." And then one of the judges wrote a concurring opinion basically saying, "Not only does the Second Amendment not apply to non-citizens, but based on an original misunderstanding, I'm also not so sure the Fourth Amendment applies to non-citizens or the First Amendment applies to non-citizens." I don't know how many more amendments they're going to go through, but they basically seem to be saying, "I'm not so sure based on a historical analysis that this group of people was supposed to be included." And I think that is so dangerous and so telling of the kind of path that originalism leads you down, that you wind up excluding whole swaths of people from basic understandings of rights that we all are entitled to by virtue of being in America, not even necessarily being an American citizen, but if you are in the United States, you have certain rights just by being in the United States.

(15:38):

And originalism is really sort of inherently at odds with that idea, which I find deeply disturbing.

Andrea Chalupa (15:45):

The whole thing is just, I don't even want to meet them where they are because if you were to have this discussion, the reality is that the founding fathers didn't even know what they wanted. They were all over the place debating, famously debating. And what they finally settled on was a massive compromise. Could you speak a little ... I mean, I just don't understand how, and again, I don't want to legitimize what they're doing because it's obvious what they're doing. It's all a big old dog whistle. But just to try to say, we have to honor the wishes of the founding fathers as though we're like in Scientology and the founding fathers are some aliens that bestowed upon us a country from on high. It doesn't work like that. The founding fathers were a hot mess and it's a miracle that anything came out at all.

(16:35):

And they even debated slavery. They were like, "We're against it. " Oh, but then my friend in Georgia was like, "Don't you dare, don't touch it. And so now we're going to keep it." If they had been sincere in the enlightenment ideals, they could have saved countless millions of lives and a disastrous traumatic civil war, right? And they just kicked that can down the road because money. So what I'm saying is the founding fathers themselves, who the hell could speak for those men that were working in such extreme circumstances? Where do they even get off? Don't answer that question.

Madiba Dennie (17:10):

Yeah. I mean, I do think it is a hilarious idea, the notion that there is a single objective meaning of the Constitution to be discovered because like you said, this was the product of compromise. These people were debating all the time. They were just people. So sometimes they were internally contradictory as well. They might disagree with themselves from time to time. So yeah, the idea that there is one true meaning is just a farce. And now originalists did sort of come to realize that a bit. This is why I mentioned earlier there are a couple variations on the idea. So I think that one of the earlier versions of originalism was more tied to the framer's intent, but eventually folks were like, "Ooh, you know what? That might be asking us to get into the heads of too many people. There could be as many intents as there were framers, so this might not actually be that helpful for us.

(18:06):

What's a different way to think about this? " But their different way of thinking about it, still tied to that point in time was, "Okay, well, what if we think about what an imagined member of the public would have understood it to mean?" And so for this, they look at dictionaries and newspapers from that time to think, "Okay, this is how these words were understood." So if we think of a reasonable person, just like an ordinary member of the public from that time, this is how they would've understood it. And so all of this is just guesstimation, first of all. Second of all, their imagined idea of this reasonable person, I'm like, who exactly is this person? Because even if you're consulting documents from that time, the documents that were most likely to be preserved as part of this historical record, you're probably not getting slave diaries, you're probably not getting treated sees by Native American people.

(19:09):

You're probably just getting the thoughts of Johnny Slaveholder. So this is not making it any more objective. You're just assuming the ideas of a rich white guy in the 1800s, which is not really that different assuming those same ideas of a rich white guy in the 1800s whose name is Thomas Jefferson. It's not actually that different if you just think of it as a random guy as opposed to this one particular specific man, but that is the way that originalists tried to sort of get away from that intention idea. So shifting more to this ordinary, original public meaning concept, which I really think is just sort of splitting centuries old hairs.

Andrea Chalupa (19:55):

Yeah. I want to talk about how we confront this and how we undo this and what the alternative vision is and how we get there. But first, I want to just say, we need hoards of protestors at the Supreme Court holding up signs, shaming these justices, the MAGA majority, including John Roberts, who was an architect of so much of the lawless Trump MAGA destruction, including, as you mentioned, he came from Reagan's DOJ where all of this finally got the legitimacy. It went from fringe movement to legitimate movement, obviously among the conservatives, but we need protesters with signs in Amy Coney Barrett's face and all her law clerks saying originalism equals Southern strategy or racist, just naming and shaming. So if anyone is looking for a project, get out there. And then so in terms of what do you see as a way to confront this, dismantle it, and what is the alternative?

Madiba Dennie (20:54):

Yeah. Well, I think one of the ways I have tried to attack this is through my book, is through this sort of idea of pulling back the curtain, trying to reveal for folks whether or not they're a lawyer. So you don't need to be a lawyer to clock this as bullshit, as you said earlier, say that this is what's happening. Here's how this affects you and here's why it's wrong.

Andrea Chalupa (21:19):

Believe your eyes and ears.

Madiba Dennie (21:21):

Believe your eyes and ears. Yeah. I want to make that clear for people that they're not crazy, that this is wrong what's happening, that they are not the ones who are being unreasonable. The court is the one that's being unreasonable and sort of trying to make clear for them just how indefensible the court's decision making is and importantly, that it doesn't have to be like this, that these are the products of choices that were made and that we have the capacity of making different choices. So I also try to explain in my book what I think some better choices would be. So instead of originalism and how it is really sort of latched on to a specific point in time, I argue that we should be interpreting the Constitution based off of principles, not a point in time, specifically the principles that are embodied in the Reconstruction Amendments.

(22:13):

These are the post-Civil War amendments to the Constitution that really transformed the document. Like you had talked about how the founding fathers sort of kicked the can down the road a bit with some of these enlightenment ideals that they had claimed to possess. Well, I think the Reconstruction is where a lot of those came to a head and where they tried to commit more seriously this time to those grand ideas and actually put them into the Constitution. So the Reconstruction Amendments are really what made the Constitution into a document that's supposed to facilitate multiracial democracy. Before the reconstruction, we don't have the amendments prohibiting chattel slavery. We don't have the amendment saying equal protection of law for everyone and due process of law. We don't have the amendment saying that people cannot be discriminated against on the basis of race. These are all things that come in in the Reconstruction Amendments.

(23:13):

And so I think that this just entirely changes everything that came before it. This is a whole new document for a whole new country. There's a reason why they call this the second founding, because it was making America anew, for real this time with the ideas they had talked about before. And so I think that when we're interpreting any part of the Constitution, we need to be doing so with that huge fundamental shift in mind, like thinking about these liberatory goals, saying that the Reconstruction Amendments instruct the country to go out and build a more egalitarian, inclusive, Democratic society that works for all of us. That's what we are told to do. And that's, again, inherently at odds with originalism. Originalism tells us that we need to keep everything in place, but the Constitution tells us that we need to be making things better, that we need to be making changes, that we need to be making an inclusive democracy.

(24:11):

So I advocate for what I call inclusive constitutionalism, saying that that's how we need to be interpreting the Constitution so that it includes and works for all of us.

Andrea Chalupa (24:20):

That is exactly what the founding father said too. They put that in the Constitution. They put that in the Constitution. So even the founding fathers are telling these white racists on the Supreme Court and their white supremacy weapons like the Federalist Society, "Hey guys, we don't have it all figured out, so feel free to amend the Constitution."

Madiba Dennie (24:41):

Yeah, they knew fully well. For all their flaws, they also knew that they had flaws. They did not think that they were just perfect and should govern forever from beyond the grave. They bestowed the country unto us. And so we should have the power to govern ourselves accordingly. And that again means breaking away from this originalist idea.

Andrea Chalupa (25:07):

Even the founding fathers would tell the originalists, "You're wrong."

Madiba Dennie (25:12):

Yeah. There's a quote I included in the book from Thomas Jefferson that I thought was so entertaining and so spot on. He said something to the effect of making the country continue to be governed by its barberous ancestors would be like trying to make an adult wear the coat that he wore as a boy. Basically just saying, literally you grow out of this. Even recognizing, I guess, some of his own barbarism, but saying, "We know that the country is going to evolve and so it should not be stuck in these old ill-fitting suits.

Andrea Chalupa (25:53):

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(26:17):

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(26:46):

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(26:59):

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(27:15):

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