‘The Originalism Trap’ author wants to see originalism dead, dead, dead

Episode Notes

Transcript

Lee Rawles:

Welcome to the Modern Law Library. I’m your host, Lee Rawles, and today I’m here with Madiba Dennie, author of the new book, the Originalism Trap, how Extremists Stole the Constitution, and How the People Can Take It Back. Thanks for coming on Madiba.

Madiba Dennie:

Thanks so much for having me.

Lee Rawles:

So first off, could you tell people a little bit about yourself and your background?

Madiba Dennie:

Sure. Currently I am the deputy editor and senior contributor at Balls and Strikes, which is a legal commentary outlet. And before that I was an attorney in the Democracy program at the Brennan Center for Justice. I’ve done a bunch of different things actually here and there, but the sort of a consistent through line is trying to think about how we communicate about the law and how we can change what the law means so that it functions better for everyone. And I think that all of those varied experiences I’ve had, whether as a columnist or a professor or an attorney, have all sort of come together in this book, which I think is my biggest efforts so far to inform and empower the public about the law

Lee Rawles:

And to inform and empower the public. Let’s first define what originalism is and where this legal theory came from.

Madiba Dennie:

Originalism is this idea that the meaning of the Constitution is frozen in time. That if we are to understand the Constitution today, it has to mean the same thing, the same way that it was understood 200 ish years ago when it was ratified. And this is a relatively recent idea. There’s long been an understanding that history or original public meanings could play a role in constitutional interpretation, but it’s only in the past few decades has the conservative legal movement insisted that it’s actually the only way that you can appropriately decide what the Constitution means. And this has been a game changer for jurisprudence as listeners have probably noticed as the Supreme Court has issued wild decisions based on this idea of we need to turn the clock back and reset things to the way the Constitution would’ve been understood hundreds of years ago. And as I said, this is a recent idea and the genesis of it really came as a backlash to the Civil Rights Movement. Conservatives were eager to find a way to legally dress up their resistance to the civil rights gains of the sixties and seventies. And this really piqued in the 1980s in Ronald Bacon’s Justice Department where they explicitly decided that originalism was the one true way of deciding the constitution’s meaning and that that was the approach they were going to take for all of their cases.

Lee Rawles:

Now, when I first encountered originalism, I was a college student, I was taking a media law course and a professor explained the theory. Antonin Scalia was a very famous proponent of originalism, and when they said, well, the Constitution can only mean what the framers meant it or understood it at the time to mean, I found that deeply confusing because I was like, wait, even if we think that only these few dozen white men can possibly be the determinant of what the Constitution meant, they didn’t all agree. And the Constitution was a document come to by bargaining and consensus. And so I found it immediately strange. One thing that I had not put in my thoughts until I read your book, the Originalism Trap was originalists when they go back to, okay, so here’s what the Constitution means. It has to be whatever the founders understood it to mean in the 17 hundreds and 18 hundreds, they never go to the reconstruction era. And that was a light bulb moment for me, the 13th, 14th, and 15th Amendments. I would love for you to expound on that for the listeners.

Madiba Dennie:

Absolutely. So the reconstruction amendments, the 13th, 14th, and 15th Amendments, as you said, are those amendments that were ratified in the wake of the Civil War. And the purpose of these amendments was to, well, first to free black people or constitutional, the freeing of black people. And then to address black people’s newly freed status like this transition from enslaved person to a full recognized member of the society, this was an important legal change. And so they took a number of different steps. First in the 13th Amendment was recognizing that slavery is unconstitutional, although I will note that the 13th Amendment has an exception for people who have been convicted of a crime. There was the 14th Amendment which established concepts like equal protection under law and due process of law and making sure that states can’t infringe upon these rights and given the federal government the power to ensure that that’s the case and the 15th Amendment, which prohibited racial discrimination in voting.

And again, it gave the federal government the power to ensure that that’s the case. This was a game changer from the original Constitution that did not have these explicit protections of people’s individual rights and liberties and did not really try to make sure that people were treated equally and were free from subordination. And when we’re dealing with originalists, their originalism tends to stop at a certain point. They’re originalists when it comes to the first founding, but that second founding that moment of the reconstruction, suddenly the originalism goes out the window or they’ll really twist and pervert the meanings of that moment. That’s where we’ll get things like Justice Alito or Justice John Roberts saying that the Constitution is committed to colorblindness above all, when literally these amendments were drafted in a color conscious way because they needed to address the status of black people. So it just doesn’t actually make any sense unless you take a step back and say it’s deliberate avoidance of the liberatory mission of the reconstruction amendments.

Lee Rawles:

Well, you mentioned Justice Alito and you are going to read a short passage for us so we can get a feel for the language used in the Originalism trap. Would you mind reading an excerpt for us?

Madiba Dennie:

Sure. Here is a brief selection from the first chapter of the book. Justice Alito would say that the Constitution means only what people would’ve understood it to mean at the time it was written. He is wrong, but hundreds of millions of dollars have been spent over the course of decades to convince us that legitimate constitutional interpretation is primarily at the province of white men in robes who graduated from Yale Law School and used Ouija boards to communicate with the spirits of dead slaveholders. I declined to be bullied by ghosts any longer, and I invite you to do the same. The hypocrisies of the framers need not be our own. By being honest about the law, both at shortcomings and its possibilities, we can discard the harmful originalist model of legal interpretation in favor of a new approach tied to underused constitutional principles like freedom from oppression due process and equal protection under law.

Dispensing with originalism artifice of legitimacy is our first step towards reclaiming the Constitution. The Supreme Court seeks to quell public revolt even while vindicating the interests of the powerful over the rights of the marginalized with alarming regularity by presenting its chosen outcomes as eminently reasonable. Such decisions are rational and objective. They assure us because originalism says our rights and liberties are frozen in the 18 hundreds, but our country’s founding documents are aspirational and we can reject the originalist command to stop striving. In the next few chapters, I interrogate how originalism tries to limit what control we have over our lives in due process and equal protection law, what say we have in our communities in election law and who deserves to have a say in the census, an underappreciated but absolutely essential part of understanding how our democracy works or doesn’t. And through inclusive constitutionalism, I show how we can demand better for our democracy and for ourselves.

Lee Rawles:

We’re going to take a quick break to hear from our advertisers when we return. We’re going to hear about this inclusive constitutional interpretation. Welcome back to the Modern Law Library. I’m here with Madiba Dennie, author of The Originalism Trap. So Madiba, you have an alternative you want to suggest to originalism. There is for anyone who is not necessarily a constitutional scholar or an attorney, there is a preexisting idea that is in contrast to originalism where you have a living constitution and you certainly don’t reject this, but you want people to go a step further. Could you please talk about what you think we need to be replacing this idea of originalism with?

Madiba Dennie:

Yeah, I want to take a step back as well and talk about the sort of difference between a dead constitution and a living constitution because originalism is described as where the Constitution is dead. It’s something just a Scalia once said, it said It’s not a living document, it’s dead, dead, dead. And that gets to that point we were chatting about before about how the meaning is fixed in time. Now in contrast to that, you have some folks who say that’s not true as an empirical matter, we know it’s a living constitution and that our interpretation has changed. And also as a normative matter, we should want our interpretation to change. We shouldn’t be locked into what this handful of 20 something year old slave holders in a sweaty room in Philadelphia trying to hammer out some compromises, as you said earlier, talking about how this wasn’t actually any sort of single intent. We shouldn’t be beholden to that in perpetuity.

Lee Rawles:

Well, and they didn’t think we would be otherwise. They would not have. They would

Madiba Dennie:

Be

Lee Rawles:

Created the system to amend the Constitution. They assumed things would change.

Madiba Dennie:

They were very well aware that this was not the end all be all. And actually I like to point to the Ninth Amendment as a very clear example of that because the Ninth Amendment basically reads literally, just because we didn’t enumerate a right here does not mean that right doesn’t exist. Please don’t think this is a full exhaustive list. It was very self-aware in that respect to say, we know that we haven’t thought of everything yet. Please go forth. This is the framework, these are the guidelines, but we expect you to color in the lines. But originalism says, no, we don’t color in the lines. The lines are all there is. And the idea of a living constitution says, no, we do color in the lines. And I think that the problem that the Living Constitution idea has had is because they don’t tell you what that coloring looks like.

They don’t tell you if we’re producing a good picture or if it’s really something quite horrid. The Constitution can change in any number of ways. And so I try to intervene here by putting forth this idea of inclusive constitutionalism saying, yes, of course the meaning of the Constitution does and should change, and this is how it should change. We should change to interpret the Constitution in a way that strengthens democracy and carries out the mission of the reconstruction amendments and works to develop an inclusive society where we have equal membership for all and where everyone can participate in the political, economic and social life.

Lee Rawles:

One of the things I appreciated as a reader, I read an awful lot of books about the way that the American justice system has ruined lives, continued to back oppressive systems, cheerful things like that. In no way do you deny that that has happened, but you very intentionally take an optimistic view of yes, horrible things have happened, horrible things continue to happen. There is a potential better future if we work towards it. So I would love to hear from you a little bit more about what gives you hope and drive and the ability to look at that better future and work towards it.

Madiba Dennie:

Well, I don’t think that bad actors are the only people capable of making change in the same way that our constitutional interpretation has changed dramatically for the worst in the past few years. That just shows how rapidly interpretation can change and we have the power to do that as well. I also get a lot of strength from kind of ironically from the past, from history because contrary to what Originalism says about there being this one inequitable version of the past, we have to stick to. I look at all of the freedom fighters from the past. I look at how people have constantly shifted and changed the meaning of the Constitution throughout the life of the document. What the 14th Amendment means today is not the same thing that the 14th Amendment meant 50 years ago and not the same thing that the 14th Amendment meant 50 years before that. So I know that change is possible because we have seen that change. There are people who have made that change, and I don’t think that those people are necessarily any more skilled or clever or thoughtful than we were, than we are. Rather, I think that we just have to act in solidarity with one another in the same ways that they did.

Lee Rawles:

There’s a line that you had that I was like, oh, someone needs to cross stitch this, which is justice for all. May not be a deeply rooted tradition, but fighting for it is.

Madiba Dennie:

That’s right.

Lee Rawles:

So the title of the book is The Originalism Trap, and I want to talk about the word trap. One aspect of it I think is you talk about how since originalism became this dominant legal theory that obviously many Supreme Court justices very openly ascribed to, there are many people who are on the progressive end of political spectrum who think, okay, well I will simply use originalism for my purposes and I will show all the ways in which the founding fathers would’ve backed my progressive aims. And that’s not a strategy you think is going to pay off long term. Could you talk a little bit about that?

Madiba Dennie:

Right. Well, I think that by and large the value of originalism is that it is a vehicle for the conservative legal movement that it helps them achieve these policy goals. It helps them mobilize people. So your diehard originalists are unlikely to be convinced by any originalist evidence that you present. And I think we’ve seen examples of this as well. Justice Catan Brown Jackson is probably the closest thing to a progressive originalist we have on the Supreme Court right now. And it is definitely a breath of fresh air when you have the conservatives butchering the Constitution’s history and you have Justice Jackson saying, well actually, what about this positive step and what about this progressive thing? There is this alternative history there that you’re leaving out. And I do think that’s, that’s important to have some fact checking, but it doesn’t actually get you anywhere because you’re not convincing them.

You’re not going to really persuade people with that who were already originalists and you’re not really likely to make any friends among people who were skeptical of originalism to begin with. So that’s one issue. Another issue is that it’s still outsourcing constitutional interpretation rather than allowing us as modern people in modern society to really engage in self-governance and think about what the Constitution should mean to us today. And again, I mentioned that we have seen throughout the life of the Constitution how it’s beginning has evolved. Even the reconstruction amendments, which are very near and dear to my heart are interpreted much better today than they were when they were originally enacted. So the original public meaning of the 14th Amendment still wouldn’t be very helpful for women. For instance, the reconstruction amendments was the first time that we had a gender inserted into the Constitution where the Constitution talks about the infringement of male inhabitants voting rights. So that was a slight to all the women inhabitants. And so that original public understanding isn’t very helpful for us today. And so I think it’s an error to still try to chain yourself to a worse off time instead of thinking about the sort of underlying principles of expanding the political membership and of building an egalitarian society and really seeing that through like saying, if we were to take those goals seriously, how would they apply today? Rather than thinking how did they assume they applied? Then think how should they apply? Now,

Lee Rawles:

Another point you make when you talk about the way Originalists consider, well, how did the general public understand these rights back when the Constitution was ratified? They really are not talking about the same people we would think of as the general public.

Madiba Dennie:

They sure aren’t

Lee Rawles:

Because we consider people definitionally differently than they did. One of the other things that I would like us to do is to take a look at what one Originalist decision has done, and we’ve got to talk about Dobbs. I think that some listeners might not be familiar with the idea of substantive due process, and you described Dobbs as an originalist Trojan horse. So could you talk a little bit about what the Dobbs decision meant beyond just I say just abortion rights for anyone who can reproduce,

Madiba Dennie:

Right. The just is in quotes because even this one decision is so significant and has been so harmful for so many people, and yet there’s also way more that Dobbs basically is a setup for. Yeah, I describe it as a Trojan horse where it’s sneaking in some reasoning that is some legal reasoning that is dangerous to a whole host of rights that we care about. So the 14th Amendment protects people against state deprivations of their lives or their liberty or their property without due process of law. And over time, people have expounded on that to think, okay, so there are two kinds of due process, then you have procedural due process. What are the kind of hoops that the government has to jump through before they can infringe, before they can curtail your liberty or other rights in any particular way? And then there’s this idea of substantive due process.

What are the rights and liberties that actually there’s no amount of hoops you can jump through that make it okay to do that? And we have expanded on this over time as the country has thought about what equality requires and what things that we may have thought were necessary back in the day but now realize are not actually helpful and just hurt people. So substantive due process has come to include, or rather it did include until the Supreme Court’s decision and DA’s abortion. But we also think of it today as including contraception. We also recognize it as including equal marriage rights for same sex couples. Also the right to have same sex intimacy between consenting adults in your home. That used to be a crime in many states as recently as 30 odd years ago until enough people came to recognize that as a violation of substantive due process rights, interracial marriage as well has been protected by a substantive due process.

So all of these things that were historical wrongs that we have righted throughout time rights that we’ve extended to people, all of them are in jeopardy because of the reasoning in Dobbs. Because Dobbs says that basically it declares all substantive due process rights suspect and says that there are no substantive due process rights unless they are deeply rooted in American history and tradition. And as I just said, gay marriage has been legal for what, 20 years maybe? Interracial marriage has been legal for maybe 50 ish years, actually a little more than 50. But still a point is this is recent history and it’s very deliberately a strategy to roll back the successes that civil rights movements have won in the recent decades. And that was what the majority opinion in Dobb said. The concurrence by Clarence Thomas actually goes a little bit farther, and he says that all substantive due process is bad, that there is only a procedural due process. There are basically no limits on what the government can do, only limits on what steps the government has to take in order to do it. And so this could upset a whole lot of people’s lives. It absolutely

Lee Rawles:

Could. And one of the things that I find interesting pejorative about some originalist arguments is you would think when you say, we must go back and look at this historical time period and adhere rigidly to this historical time period that, okay, if I was a member of the general public, I would assume that, so historians are involved, right? You’re delving deeply into history and it seems by all the amicus briefs that are filed in various cases that oftentimes originalist arguments just make historians break out in hives. When you were writing this book, did you talk to any historians about this, about the attitudes that the academy has about this trend in legal theory?

Madiba Dennie:

I actually have a couple historians in my family. My younger sister is a historian of a black feminist to history, and my dad is also a historian who focuses on the Caribbean and the African diaspora history. So there was definitely a lot of concern in the family group chats from our resident historians, like what is going on in the way the court approaches history? And you also see a lot of distress from amicus briefs submitted by historians. It’s really remarkable that for course, that are claiming to care so much about history. They’re saying things that are at odds with what the actual professional historians are saying. It’s just amateur hour in service of bigotry.

Lee Rawles:

Well, we’re going to take another break to hear from advertisers when we return. I’ll still be talking to Madiba Dennie about her book, the Originalism Trap. Welcome back to the Modern Law Library. I’m your host, Lee Rawles here with Madiba Dennie. So Madiba the last section of your book, and just for listeners who want to go out and pick up the originalism trap, I don’t want you to think that the only thing in it is what we are going to talk about now. If you pick it up, you’re going to learn a lot about specifically what originalism has done in the areas of election law, in the areas of the census. But the last segment of the book, you not only talk about this idea of an inclusive constitutionalism, you lay out some practical suggestions about how people from all ends of the spectrum can oppose originalism in concrete ways. And I would love to dig into that with you. So one thing that you say is that originalism has caused a trickle down lawlessness. So first if we could talk about what the trickle down lawlessness has done, and then we can get to what you think people can be doing to fight back against it.

Madiba Dennie:

Right. Well, I don’t think you get some of the wild decisions we’ve seen coming out of places like the Fifth Circuit Court of Appeals or Matt Kids Kamas District Court without the sort of rise of the conservative legal movement and their originalist model of thinking about the Constitution saying that we have to reset all of these rights. And I think it trickles down to the lower courts that struggle to apply these originalist rulings. And also it encourages them to wild out too, if the Supreme Court is doing it and it encourages far right activists like Alliance, defending freedom, always some innocuous name like that, and other actors, it encourages them to keep pushing boundaries on what is constitutionally permissible. I saw the other day a new lawsuit filed by some two professors at UT Austin, I believe, who are trying to penalize their students if they miss class, to go out of state to get an abortion. That’s madness. And

Lee Rawles:

One could ask, how would you know?

Madiba Dennie:

Yeah, there are a lot of questions and concerns that I have and something like that wouldn’t happen if not for the green light of dos. So that’s the kind of trickle down lawlessness that I refer to. And I think that people need to respond to this in a variety of ways. And one of the ways that is potentially a little bit controversial is an alternative kind of lawlessness one that instead of coming down from these powers that be finding ways to hurt people, what if communities pushed for legislation that basically functioned similarly to the anti-abortion trigger laws, but it was anti-democracy. So they’re trigger laws for democracy, essentially.

Lee Rawles:

You called them democracy enhancing trigger laws. And I found that a really fascinating phrase. What would an example of a trigger law be just for listeners who may not be familiar? While abortion rights were protected by Roe v Wade and other cases, there were jurisdictions that would pass legislation saying, if Roe v Wade is ever overturned, then at the stroke of midnight, all abortions within this state would be illegal. That’s the kind of trigger law that was written. And now that Roe v BA has been overturned, presumably in effect snapped

Madiba Dennie:

Into effect,

Lee Rawles:

Snapped into effect. So what is an example of a democracy enhancing trigger law that would be possible?

Madiba Dennie:

Like pick your favorite terrible ruling? I can imagine a democracy enhancing trigger law like Citizens United was wrongfully decided, and once it is struck down here would be campaign finance regulations. We are imposing in our state, I can imagine stronger, stronger protections for labor unions saying the court misinterpreted the First Amendment in protecting labor protests. And so we are now protecting it in this way, and we believe that this is the appropriate constitutional understanding. So basically finding ways to assert that you understand the Constitution differently and that it is reasonable and legitimate for you to do so.

Lee Rawles:

We’re talking mostly I think in my audience to a number of people who are in the legal profession, but there are general audience people too who could be hearing our conversation. I think that, I’m trying to think of a more positive term than propaganda, but I think that there is an understanding imparted to school children that, oh, well, the Supreme Court interprets the Constitution. They’re the only ones that do that. They’re the boss. They’re the boss of the Constitution. And you point out that, well, this has not historically been so necessarily, and if it were the final word forever, then we wouldn’t have cases overturned. And you brought up a really interesting one. This is a case involving Jehovah’s witnesses and school children who were being required by law to salute the flag, which is against their religious beliefs. The case was Minville School District versus Gadi, and this was in the 1940s. And within a three year period, the Supreme Court made a definitive announcement about what the Constitution demanded, and then three years later was like, whoops, we messed up. And it wasn’t because there was an amendment to the Constitution.

Madiba Dennie:

Exactly. So

Lee Rawles:

Could you talk a little bit about this case and what you think it shows us about the power of people, public opinion places and people outside of the Supreme Court to change things?

Madiba Dennie:

Right. There was pretty significant backlash to theist decision. And in some ways, in some ways it reminded me of the consequences of Dobbs in a way in that after Dobbs was decided, immediately you start hearing horror stories of what it meant practice. And it was very similar in the case of there were immediate horror stories about the sort of license for discrimination against Jehovah’s Witnesses that people thought they had as a result of the court’s decision and sort of rash of laws similarly forcing them to say the pledge and to salute the flag. And also if they tried to not do that, they then had to pay for private school out of their own pockets or their parents could risk jail time from being for having truant children. So that’s how it reminded me of Dobbs in a sense, in that suddenly there are these physical and even potentially carceral consequences that people were shocked by and the backlash to goodbye this says, well, there was a wave of physical violence against Jehovah’s Witnesses too.

And I think people became very concerned about this response. And there was a wave of opposition in newspapers, like in Op-Eds in the streets, as we’ve seen with Dobbs as well, just so people stating their opposition to the decision. We saw elected officials begin to waiver on the decision as well that I believe it was FDR at that time. Yeah, it was FDRs Justice Department said that they encouraged the court to overturn this as soon as possible, and they don’t think it’s firmly rooted as precedent. And we even saw some lower courts not follow the Supreme Court’s ruling saying that in light of everything that was happening and the public response and whether from regular people or from high officials who seem to be distancing themselves from the case, they said, well, under these circumstances, I don’t think that we can look at this and apply it as a firmly rooted and accepted precedent, so we’re just going to not do that. So in a bunch of different ways, you saw so much resistance that the court felt compelled to overturn the ruling a mere three years later. And again, there was nothing about the text of the Constitution that changed in that time. It was the way people said the Constitution should be understood. That was changed.

Lee Rawles:

You also had a quote that I thought was fascinating, which is there is power in putting your constitutional interpretation into practice and acting as if it is already recognized as correct. I would kind of argue that that is part of the success of originalism. It was so strongly advocated and adopted for, and its adherence said this is the only possible way.

Madiba Dennie:

They basically spoke it into existence

Lee Rawles:

That you can properly look at the Constitution.

Madiba Dennie:

Yeah, they said, we’re going to fake it till we make it. We’re going to say that this is the one true way of constitutional interpretation until people start to believe it. And that shows how there is power in acting out what you believe to be true and in mobilizing communities around this shared belief. I think that when you get enough people who agree and will say that the Constitution must be interpreted in a particular way, it becomes very hard for institutions like the court that have no enforcement type mechanisms of their own to say, no, actually the Constitution is understood this other way. They eventually have to bend to what the public says.

Lee Rawles:

We’ve talked about what the general public can do. What specifically are you looking for lawyers who don’t think that originalism is the proper way to approach constitutional law? What can legal professionals do, whether it’s attorneys, judges themselves, what are you calling on people to do?

Madiba Dennie:

Oh man. I would love for attorneys to start making non originalist arguments and for judges to start writing non originalist opinions. So that’s one thing that folks who disagree with originalism and our attorneys can do right now. I also think that we should make, and this one can go for lawyers or non-lawyers, that originalism should make the Constitution a campaign issue. Many state judges are elected and you can say that we are not going to vote for originalist candidates, or you can run for your local judge position. And as a non originalist candidate, I think that looping back around a bit to the sort of democracy enhancing trigger laws we spoke about attorneys can play a role in drafting legislation or just helping social movements transform their policy goals into law and helping them sort of constitutional those arguments to push the meaning of the Constitution to be broader and be more inclusive. And I think we have to do a lot of communicating among ourselves as lawyers and among the general public. I think we need to try to explain these things to people who might otherwise be lost in the legalese. And we also have to check ourselves and say, we don’t have to just accept originalism as valid. We can say it’s wrong. We can choose to do law another way just as the originalist did. We know it’s not impossible because it’s been done.

Lee Rawles:

I’d love to talk about your writing process because as you just said, you really want lawyers to be communicating these ideas in ways that people who are not law school students or lawyers can understand and participate in democracy going forward with greater knowledge. And so I know that I have talked to many guests on this program who wrote dense books because they necessarily had to be dense. They’re talking about dense topics. That’s not how the originalism trap reads. You include a lot of little pop culture references. Jurassic Park came up more than once, Raptor sensing defenses. One of my favorite little bits was originalism condemns the rights of oppressed people to stagnate stuck in amber like the mosquito in Jurassic Park except here, the preservation reanimate racism instead of raptors. Was it hard when you sat down to write to make sure you didn’t fall into the trap of writing like your writing for a law school paper?

Madiba Dennie:

It actually was not that challenging for me because that’s literally just who I am. I’m the person who finds ways to bring Jurassic Park into conversations because I love that movie. I think that I basically wrote the book the way I speak, the way I would talk to my friends or talk to my family, how I wanted people to understand it as well. I wanted them to feel like they were just having a chat with their lawyer friend or their friend who happens to be a lawyer and knowledgeable about these subjects. And I wanted it to feel like me. So I just went ahead and put myself in it.

Lee Rawles:

And as you and I speak, it’s May 31st. So the book has not, as we’re talking been published, but my beloved listeners are hearing this after the book has come out. What has been some of the response that you’ve gotten from early readers? Some of the feedback, what have you been hearing from people?

Madiba Dennie:

I have been overjoyed at how positive the reception has been so far, been extremely validating to get these positive responses from a range of folks. Ellie Misal at the Nation and Thalia Lithwick at Slate both wrote me lovely blurbs phrasing the book, as did I think the one I was really excited about as well was getting glowing comments from Professor Irwin Shimmer Minsky, because I was just like, oh

Lee Rawles:

Man, an A journal columnist.

Madiba Dennie:

Hey. I was like, this is the guy who, we had books in law school that you would refer to just by his name, and they’d be like, oh, make sure you have your rinky if you want to pass law. And so it was exhilarating to me that rinky himself would co-sign my understanding of the Constitution. So I’ve been really excited to see that. And I’ve been also happy to see folks who, in addition to the scholarship part, enjoy the sassy parts as well, that it’s not just for lawyers and law professors, but folks feel like they too can understand it and enjoy reading it. Even. I was talking with an early reader the other day and they said they were reading it on a flight back from someplace and they laughed aloud on the plane. It just made me so glad to hear that.

Lee Rawles:

Well, if any of my listeners want to pick up the book, want to find out about any events you’re doing, I know that you’ve done at least one public event through Slate that’s available on YouTube. Where can they go to find more about you and the Originalism trap?

Madiba Dennie:

Sure. Well, I do have a website, madiba Dennie.com. I also post all the time, perhaps too often on Blue Sky. My handle there is at Audre Lauder Mercy. That’s A-U-D-R-E-L-A-W-D-A Mercy. If any of the listeners are in the NYC Met Show area, I’ll also be holding a launch event on Friday, June 7th, which I think is the day after folks might be hearing this. So if you can make your way to Brooklyn at the Restoration Plaza, I’ll be there talking about the book and even signing some copies.

Lee Rawles:

Well, thank you to Madiba for coming on to talk about the Originalism Trap, and thank you to you, my listeners, for joining us for this episode of the Modern Law Library. If you enjoyed, please rate review and subscribe in your favorite podcast listening service. That’s a huge help to us. And if you have a book that you’d like me to consider for a future episode, you can always reach me at books at ABA Journal com.