How Extremists Stole the Constitution and How We the People Can Take It Back with Madiba K. Dennie

Episode Notes

Transcript

Madiba K. Dennie:

The Constitution isn’t just supposed to be a lawyer’s document. It isn’t supposed to be just for the handful of people who breathe the verified air at the Supreme Court. It’s supposed to be for all of us. It’s supposed to be for everyone, and so I think we should all get to take part in establishing what the Constitution means.

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That’s today’s guest on SideBar attorney columnist and Professor Madiba Dennie

SideBar is brought to you by Monterey College of Law, San Luis Obispo College of Law, Kern County College of Law, empire College of Law, located in Santa Rosa and the College of Law with campuses in Santa Barbara and Ventura.

Welcome to SideBar discussions with local, state and national experts about protecting our most critical individual and civil rights Co-hosts Law Deans Jackie Gardina, and Mitch Winick.

Jackie Gardina:

Mitch. We have kind of thrown a lot of terms out at different SideBar episodes about history and tradition and originalism and how the Supreme Court interprets the Constitution, but we’ve never actually spent time talking about those kinds of approaches to the Constitution and whether they’re the right approach or where they came from. But like always, we’ve invited someone who is an expert in this area and who has actually written a book specifically about originalism

Mitch Winick:

Madiba. K Dennie is an attorney columnist and professor whose work focuses on fostering an equitable multiracial democracy. Madiba 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 many more. Her debut book, the Originalism Trap, how Extremists Stole The Constitution and How the People Can Take It Back will be out in June and is now available for pre-order. Welcome to SideBar Madiba.

Madiba K. Dennie:

Thank you so much,

Jackie Gardina:

Madiba. Congratulations on really what are some wonderful reviews that you’re getting on the book and I’m very much looking forward to reading it. We have a lot of non-lawyers who listen to SideBar, so just to lay the foundation, when you say that the court is using originalism to interpret the Constitution, what do you mean by that?

Madiba K. Dennie:

Originalism is the idea that there is a single fixed discoverable meaning of the Constitution. Originalists claim that the constitution’s meaning is fixed in time, frozen at the moment of enactment, and that we should be interpreting the Constitution today. However, those folks assume or claim that people would’ve been interpreting the Constitution at that moment in time. I think they promote this idea in a couple different ways. They justify it by saying, well, this is what the people who drew up the Constitution would’ve understood it, so that’s how we should understand it too. This is a way that restricts judges from imposing any of their biases because it’s a standard uniform objective way, but if you think critically about that for all of a minute, or if you just observe the way that originalism is implemented by the court, all of those justifications fall away and it becomes revealed as nothing more than a fancy legalistic excuse for conservatives to do what they wanted to do anyway.

Mitch Winick:

As much as Jackie, and I can hardly wait to get into the weeds on this because this is a topic of near and dear to our heart, but let’s first start for the average citizen going about their day-to-Day lives, why do they care one way or the other about how the Supreme Court or anybody else for that matter interprets the constitution?

Madiba K. Dennie:

That question and the sort of idea behind it that this is not a thing that regular people do or should have to care about has allowed Originalists to get away with so much. They are counting on your average Joe being like, I have bigger things to worry about in my day-to-Day life. That helps them get the cover they need to actually shape people’s lives in a lot of specific ways. We’ve seen this very clearly recently with the gun rights decisions. That’s a direct outgrowth of originalism claiming that the meaning of the Constitution is fixed because violence against women wasn’t considered an issue in the 18th century. Now all of a sudden, it’s constitutionally problematic to restrict domestic violence offenders from having guns. That’s a very real way that people are actively impacted and having their lives threatened because of originalism. To that end as well, the Dobbs decision overturning the constitutional right that was recognized for nearly 50 years, protecting the right to an abortion, all of a sudden we have Sam Alito claiming that in the 18th century, Lord have understood the Constitution to not prohibit restricting abortion, so all of a sudden you have millions of Americans of reproductive age finding themselves forced into pregnancy, forced into childbirth, and forced into parenting.

Mitch Winick:

I warned Jackie that I was not going to get very far into this without the word hypocrisy. Getting into my question, I just find it so hypocritical that if you really want to take originalism in the Second Amendment far enough, then I’m really not upset with those individuals who have domestic restraining orders carrying muskets and barrel loaded musket balls on their archaic weapons, the only understanding of weaponry that could have been argued, and not AR fifteens, ar seventeens, and all of those things.

Madiba K. Dennie:

It’s really outlandish when you hear advocates for originalism say, oh, well, the founders would’ve never stood for this kind of restriction on gun rights, and it’s like, well, the founders also weren’t able to fire off like 60 bullets in the span of 60 seconds. That just wasn’t a thing. Of course, their understanding of the law would not have accounted for that, but things change, and so the way we evaluate and apply the law to our evolving circumstances needs to similarly evolve.

Jackie Gardina:

I want to follow up on something that is hinted at in the Title two, your book, which is that the Supreme Court’s been interpreting the Constitution for nearly 250 years and originalism is a relatively recent phenomenon. In fact, originalism was once considered a fringe approach to constitutional interpretation, so how did originalism emerge as the apparent predominant approach for today’s Supreme Court?

Madiba K. Dennie:

We have a lot to credit if you’re an originalist blame for the rest of us because the Ronald Reagan Justice Department really put a lot of effort into normalizing and popularizing originalism as the way the government would argue its cases. Similarly, we have to blame the Federalist Society for really working to groom baby conservatives so that when they grow up, they can be hard lying, originalist judges, developing that pipeline, giving them a place to formalize their beliefs and sort of polish them and dust them off as well. As you said, it was kind of out there, it was a kooky thing. No one was really taking originalism that seriously, and so you had to have a concerted effort by various conservative legal elites, your Edwin Mees, your Antonin scalia’s to professionalize it and glamorize it and make it seem like it was now something with institutional legitimacy and credibility and creating this mythos of the right way to interpret the constitution that we need to return to. We have been led astray by those radical egalitarians of the Warren Court, and we need to return to this way of thinking about the constitution that is way more restrictive and way more oppressive, but they pretend it’s actually way more objective.

Mitch Winick:

So Madiba. Recently we’ve heard the use of the terms history and tradition to define interpretation of the Constitution. Is that somehow different from originalism or is this just same song, different verse?

Madiba K. Dennie:

They can be the same. They’re not necessarily the same because I think sometimes folks will invoke history and tradition but not necessarily linked to the moment of ratification, which is how originalists will often defend what they’re saying. Say, you need to look to the particular moment when this constitutional provision was enacted. But in practice, you see folks pulling in all kinds of things, just whether or not they feel like it, depending on what would most defend the claim they’re trying to make. Again, you saw this very strongly in the Bruin decision where there were tons of gun regulations as historians have pointed out hundreds of years ago, but Clarence Thomas found ways to explain away everything that didn’t fit his narrative saying, oh, well, that regulation doesn’t count because it was too early, or that law doesn’t count because it was too late, or That one is an outlier or that one is different for other restorative reasons.

So there was a legal historian, his name’s escaping me at the moment, but he had this really great line that said, this isn’t so much history and tradition as fiction and mythology. Actual historians are looking at the Supreme Court’s pretended reliance on history and tradition and being like, what are y’all talking about? This has no relationship to the kind of history we’re doing. Yeah, we just have these judges who are not trained historians picking and choosing their favorite parts that go along with their own policy agendas, basically using the courts as the judicial arm of the Republican party.

Jackie Gardina:

I just want to follow up on the history and tradition idea because as I listened to oral arguments, especially since Justice Jackson has joined, she’s been very good at kind of poking at and calling out this use of history and tradition or at least the way that it’s been used. What I’m kind of torn about is I also worry that she’s legitimizing it by using it, and I’m just wondering what your thoughts are around that.

Madiba K. Dennie:

I share that concern. I definitely can respect and appreciate, as you were saying, Mitchell calling out hypocrisy, identifying that they are not really being honest about the way they claim to apply originalism because if they were serious about originalism, it would require different outcomes. I think there is some merit to doing that just in terms of exposing the fraud of what the so-called originalists are doing. However, I think you really went into a problem when you’re still putting on a pedestal and lifting up originalism itself as the singular way of deciding what the constitution means. I think that’s a real error. We are still chaining ourselves to a time where much of America was much worse off. We’re still relying on these inadequate subpar fo academic historical research techniques. That’s actually just couple lawyers and law clerks just going over some textbooks for what best suits what they wanted and slapping a citation on it. That’s not good history. That’s not how historians do their work. It’s

Jackie Gardina:

Not good law either.

Madiba K. Dennie:

Precisely, any kind of originalism is still going to be bad. It can be used in some cases for better outcomes, but what we really ought to be doing is having an entirely different method of deciding what the constitution means and applying our loss today. Rather than saying it should still be linked to a purported discoverable original meaning they just found the wrong one, but we should still be digging through the archives to find out what the constitution means. No, I reject that.

Jackie Gardina:

We’re going to take a quick break to hear from our sponsors and when we return, we will continue our discussion with Madiba K. Dennie, author of the Originalism Trap,

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Jackie Gardina:

Before we move on to the interpretive approach that you talk about in your book, I wanted to circle back to something that you said earlier just to give you an opportunity to respond to critics. So one of the things that you said was that allegedly originalism is to kind of bind judges, so judges aren’t imposing their own biases and views of what constitution should be, but rather what it is, and Justice Scalia would argue that the answer to the challenge that or the frustration people feel about how the constitution is being interpreted right now is to amend the Constitution not to give nine unelected judges the authority to interpret based on their modern view of what it should be. How do you respond to those critics who use that argument?

Madiba K. Dennie:

The first thing that came to mind is I too would rather we didn’t have nine unelected life tenured justices. If you want to change that, I’m all that. I have no problem with that. I also do think that we should have an easier process to amend the constitution. I think that America’s constitution has been understood as notoriously unamendable. It’s pretty rich to now claim, oh, just pass an amendment when A, they know that’s very difficult to do, and B, their interpretation can change what that amendment means anyway. No matter what the text of an amendment says, it would still be vulnerable to originalist manipulation no matter what you’re doing, no matter how many justices there are or how long they serve on the court or what the actual text of the amendment is, you still need to think about the best way to interpret it because it will change based on who is making those decisions and based on their methodology.

I cannot promise that making a constitutional amendment would just fix the issues when we see what the court is currently doing with constitutional amendments. I would say that yeah, Congress has tried to do this. They made amendments. They made the 14th amendment, they made the 15th amendment, and despite what Congress put in the 15th amendment giving Congress the authority to protect voting rights, we still see the Supreme Court strike down huge sections of the Voting Rights Act. So it’s not enough to just say, oh, well just pass an amendment as if that’s an easy thing to do, and if that alone solves the problem, the text alone is insufficient. We need to think about what the people do with that text.

Jackie Gardina:

Well, and I think that’s a perfect lead in for you being able to talk about what you do in your book, which is you recommend in an interpretive approach that you call inclusive constitutionalism. How would your approach have changed the outcome in Dobbs or the affirmative action case or even the Second Amendment cases?

Madiba K. Dennie:

The affirmative action case is a particularly good example because there you saw the conservative justices claiming that the Constitution was originally committed to this colorblind version of applying the law, which again, demonstrably false. I don’t think we should be arguing solely and debating on their terms as we discuss. I don’t want to be having to have originalist arguments, but also they’re just wrong.

Mitch Winick:

It was easy for them to be colorblind when the only people in the room for the discussion were white males.

Madiba K. Dennie:

I would say they’re completely missing the point of the reconstruction amendments and of the reconstruction writ large. The whole goal was changing our legal structure, changing the constitution so that previously excluded people could be included so that we could have a functioning equitable, multiracial democracy for the first time. I think that by focusing on the minutia of classifications as to just sort of recognizing or seeing color as they would say, as opposed to how people of color are substantively being treated, that’s a grave mistake. I guess a mistake implies accident, and this was deliberate. It’s the wrong choice. So I think that we should be applying their reconstruction amendments in a way that focuses on its anti subordination mission. Its purpose is to allow people to participate equally, give them the things they need to function and be included in democracy to further the democratic process. So we should be thinking as we interpret the whole constitution, this is why I call it inclusive constitutionalism. I think the constitution includes everyone, so our interpretation should serve to make the promise of inclusive democracy real, and that’s what we should always have in mind when we’re applying these laws. Thinking about this overarching guiding purpose of facilitating a multiracial equitable democracy and thinking, what does that actually require? What would make sense under the law if we were serious about these constitutional goals?

Mitch Winick:

So let’s focus for a moment on the tension in the court’s jurisprudence about race. This us, them, the do we or don’t. We see race after the affirmative action case, we had Damon Hewitt, the president and executive director of Lawyers Committee for Civil rights join us here on SideBar. It was great. He said something that just seemed obvious, quote, we all see race, but in contrast, justice Roberts infamously said, the way to stop dis discrimination on the basis of race is to stop discriminating on the basis of race. So people have latched onto this soundbite as supposedly a way forward and a simple way to just end discussion about race in our society. What’s your thought about that?

Madiba K. Dennie:

I regard that as the mother of all taught a logical statements reflecting a real infantile understanding of what discrimination actually is. Roberts actually does something a little slick there with his repetition of discrimination on the basis of race because he’s using the word in a couple of different ways. In one instance, he’s talking about discrimination on the basis of race, as in subordination, the kind of things we care about like oppressive discrimination, and then the other instance he’s using discrimination as in just making distinctions, like recognizing that people are different races, and so it’s pretending that the way to stop racial discrimination, actual racial discrimination is just by pretending race doesn’t exist, but racism will continue to exist. Whether or not you acknowledge it, that this idea of not discriminating on the basis of race is actually just not doing anything about racial discrimination by being colorblind as they call it. It’s more like being blind to racism. It’s ignoring the prejudice and oppressive systems that continue to exist. So the false claim to equality actually just serves to perpetuate inequality.

Jackie Gardina:

It seems in today’s society, our discussions about race have become zero sum games. If a law is upheld to remedy past mistakes like slavery or land theft or forced termination of Indian tribe nationality, then the outcome is framed as marginalized groups like winning and whites losing or being harmed in some way, and it sets up this us dichotomy that just seems to deepen divisions. Is this the only lens through which to look at these issues and how does your approach allow us to reframe the discussion in a way that might be healthier to our society or our democracy?

Madiba K. Dennie:

It’s definitely a really inadequate, impoverished way of understanding what racial justice and social justice more broadly means. It simply isn’t true that justice for one group means something is being taken away from another. It’s not pie. It’s not like I get a slice, so you don’t. We all should have some of the democracy pie. I think that by pretending otherwise, it allows the elite few to separate people to and to exploit them and reap various political and financial benefits when really we would all benefit from a society in which everyone can participate. We’ll be able to pass laws and enact policies that are more responsive to people’s needs. We can have the expression that a rising tide lifts all boats. Yeah, we would all be served by whatever targeted solutions benefit the sort of worst off people. Everyone is improved As a result of that, we would all get to live in a functioning democracy that’s a benefit for everyone, let’s say for people of color to have actually protected voting rights.

I want to say it was Heather McGee that has this concept that she calls the solidarity dividend, just saying You really add and gain more when you stop looking at things as an us versus them game, but expand us. I think that’s also part of my idea of inclusive constitutionalism is thinking that to think about we the people more broadly think about we are all part of we, all of this country’s residents should have a say in the direction of the country. We should be able to have all of the rights and benefits and privileges that are supposed to flow from this, and we’re all worse off when folks are forced of that understanding of we.

Jackie Gardina:

It just strikes me listening to you respond to that question is how far we’ve gone from kind of the general welfare idea that undergirds our constitution to kind of the individual liberty, my rights, my job, my ability to do this or that versus what’s better for society as a whole. So it seems as if that idea of let’s expand us is about recognizing the general welfare of society and our democracy as a whole rather than a focus on minute individual liberties. Well,

Mitch Winick:

Jackie, what you’re describing is me the people, not we the people as it’s rolling out these days.

Jackie Gardina:

We’re going to take another quick break to hear from our sponsors and when we return, we’ll continue our discussion with Madiba Dennie, author of the Originalism Trap,

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Mitch Winick:

The reality is that we’re living in this era of originalism other than academics such as the three of us pushing back, what should we be doing and more importantly, who should be doing it If we really want to realign this type of thinking, any specific suggestions,

Madiba K. Dennie:

Everyone has a role to play, so I think everyone has a responsibility and everyone has something they can do. I think that’s just as true if not more true of the constitution and constitutional interpretation itself. The Constitution isn’t just supposed to be a lawyer’s document. It isn’t supposed to be just for the handful of people who breathe the verified air at the Supreme Court. It’s supposed to be for all of us. It’s supposed to be for everyone, and so I think we should all get to take part in establishing what the Constitution means. There’s also lots of room for regular people who aren’t lawyers to change what the Constitution means as well that can look in many different ways, whether it’s in their local elections, making the Constitution a campaign issue because many judges are elected on a state level. They can start shifting Who gets to make interpretive decisions there by having candidates say, what’s your method of interpretation?

Are you an originalist? Okay, then I’m not voting for you. I think ways that the Constitution has changed in the past, some have really strongly depended on the work of social movements like fighting for justice like we saw with the Civil Rights Act and how we saw the groups in the sixties trying to make the terms of the reconstruction amendments real since they basically were on ice for the proceeding century. How we saw folks with the women’s suffrage movement, for example. I think we need a critical mass of people saying what they think the constitution means and should mean. As an example, one thing I shout out in the book is some labor strikes The right to strike is not fully constitutionally protected. Really. People go on strike anyway. They claim anyway that they have a right to make their voices heard. They have a right to negotiate their better working conditions. I think that there’s real power in putting your constitutional vision into practice and sort of claiming anyway what you think the Constitution does mean or should mean because you might then force the institutional legitimizers to take your view more seriously.

Mitch Winick:

So one of the things we’ve talked about a number of times on SideBar has been the issue of censorship and censorship in the schools, both in K 12 as well as at the university level. We’ve had a number of our guests talk about the lack of classes in civics as we used to call it, but civics or American history or as we’ve seen in Florida, the attempt to rewrite American history so that we have a narrative that doesn’t actually follow the facts. It would seem to me that for the future generations of adults who are now in elementary school and high school, maybe it’s not too early to start changing some of the views back at that point. Is that too far of a stretch?

Madiba K. Dennie:

I don’t think that’s too far of a stretch because those same children are already being, I guess they’re being indoctrinated with a different set of beliefs right now. They’re being raised to think that, oh yeah, our constitution works totally fine. Everything’s great. Don’t worry about it. We have our unit and our social studies class saying, George Washington did this, that and the other, and then Abraham Lincoln freed the slaves and then maybe some people march to Washington and everything’s great, everything’s fine. We can tell a different story. We can develop a different fuller narrative that reflects the great range of people who shaped what the law means. We’ve seen the meaning of the law change because of regular people working together, and so I think there’s room for that. Our schools and in the way we educate people about what our rights are and what our legal system is and what it can be, instead of pretending that it is and has always been this one set thing and that there are no problems with it saying, yeah, it’s shifted because people thought it should change to better suit their needs and here’s how people did it.

I think there’s nothing wrong with sharing that information. In fact, there’ll be something wrong with hiding it.

Mitch Winick:

Madiba, as we wrap this up, Jackie and I frequently argue about whether we’re optimistic or pessimistic about the trends in the law and constitutional law and the current Supreme Court, but help us with that. It took 50 years and millions of dollars of investment for the Federalist Society to move the ideology of the Supreme Court to where it is now, and there’s really no disagreement that that’s been the pattern they played the long game and it is coming to fruition right now is the answer to those of us who disagree and agree with your book and your approach that we shouldn’t panic, and it is a long game back to the type of interpretation of a constitution that we believe in.

Madiba K. Dennie:

I feel a couple different ways about that. I guess I’m wondering what we mean with the word panic. I don’t want us to panic in the sense of all is lost if by panic we can still mean have some sense of urgency. I would support that, but I wouldn’t want too much panic in the way that folks might think that there’s nothing they could do. I also think that as bad as things are right now, that makes a lot possible. Yeah, Republicans did play this long game to fully capture the courts and change the way the Constitution is interpreted and it’s coming to fruition, and in some ways it’s a little bit like the dog that caught its tail or caught the car, what have you. They got what they wanted and a lot of people in the country are seeing it clearly for how awful it is that has potential to trigger a response. It creates the conditions to make more change possible. That’s the thing we have to remember that change is always possible. I’m an optimist and have hope. People before us had hope and were able to accomplish things that seemed impossible then, and there’s no reason we can’t do the same

Jackie Gardina:

Mad diva. I think that’s a great place for us to leave it, and I want to wish you good luck on the launch of what you’re calling your debut book, which makes me think there will be a follow-up book and we’d love to talk to you about that one as well. So thank you so much for joining us on SideBar.

Madiba K. Dennie:

Thank you for having me.

Mitch Winick:

Mada, thank you for the work you’re doing and the voice you’re bringing to these issues. It’s obviously important to us and we think it should be important to everyone.

Madiba K. Dennie:

Agree. Thank you,

Mitch Winick:

Jackie. This was another important conversation about not just the Constitution and the rights that each of us derive from the Constitution, but how we get there and how we get there is as important as what we get. At the end of the day. Madiba does such a great job of helping us understand this long history of interpretation of the Constitution, but even more importantly, she helps us understand why there’s been a change in how the constitution’s been interpreted, and this change is using words such as originalism and history and tradition as terms of art that want us to believe that this is the only way that the Constitution can be interpreted, and in fact, that’s just not true. I’m really pleased with how she helped us understand that.

Jackie Gardina:

I thought it was really helpful for me specifically when I think about how originalism emerged as a predominant authority on how to interpret the Constitution. I’d always centered it really around a conservative legal movement, the Federalist Society, but it was interesting for me to hear that the Reagan administration made deliberate decisions that anytime that they were before the Supreme Court, that they were going to argue about the constitutional meaning of sections, and I don’t think I understood the executive branch’s role in pushing Originalism until Madiba spelled that out for me,

Mitch Winick:

And as she highlights for us, this isn’t just an arcane conversation for academics, the outcome of this approach and the way we think about the Constitution, the way the legislature considers it in drafting laws, and most importantly the way the Supreme Court approaches their interpretation of the Constitution absolutely affects us on a day-to-day basis. And you pointed it out, it’s issues such as the Dobbs decision, the Bruin case on the Second Amendment. It was part of the conversation recently in the discussion of the application of the 14th Amendment as to the disqualification of Donald Trump for the election ballot. So these issues are happening on a day-to-day basis in our everyday life with an enormous amount of impact.

Jackie Gardina:

Madiba in her writings, and I’m sure it’s going to be a critical part of her book as well, is the importance of recognizing our diversity and race in this country rather than ignoring it. And we’ve seen that theme come up over and over again in SideBar episodes. As Damon Hewitt said, and you repeated it today, we all see race and I believe you followed that up with, and we need to celebrate our differences. Once again, I want to thank everyone who joined us today on SideBar, and as always, Mitch and I would love to know what’s on your mind. You can reach us at SideBar media.org.

Mitch Winick:

SideBar would not be possible without our producer, David Eakin, who composes and plays all of the music you hear on SideBar. Thank you also to Dina Dowsett who creates and coordinates sidebar’s. Social media marketing.

Jackie Gardina:

Colleges of law and Monterey College of Law are part of a larger organization called California Accredited Law Schools. All of our schools are dedicated to providing access and opportunity to a legal education to marginalized communities.

Mitch Winick:

For more information about the California accredited Law schools, go to ca law schools.org. That’s ca law schools.org.

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