The Originalism Trap

How Extremists Stole the Constitution and How We the People Can Take It Back

By: Madiba K. Dennie

Narrated by: Madiba K. Dennie

A rallying cry for a more just approach to the law that bolsters social justice movements by throwing out originalism—the theory that judges should interpret the Constitution exactly as conservatives say the Founders meant it

“The greatest trick conservatives ever pulled was convincing the world that originalism exists. This book is vital for understanding why the world sucks right now.”—Elie Mystal, author of Allow Me to Retort

There is no one true way to interpret the Constitution, but that’s not what originalists want you to think. They’d rather we be held hostage to their “objective” theory that our rights and liberties are bound by history—an idea that was once confined to the fringes of academia. Americans saw just how subjective originalism can be when the Supreme Court cherry-picked the past to deny bodily autonomy to millions of Americans in Dobbs v. Jackson Women’s Health. Though originalism is supposed to be a serious intellectual theory, a closer look reveals its many inherent faults, as it deliberately over-emphasizes a version of history that treats civil rights gains as categorically suspect. According to Madiba K. Dennie, it’s time to let it go.

Dennie discards originalism in favor of a new approach that serves everyone: inclusive constitutionalism. She disentangles the Constitution’s ideals from originalist ideology and underscores the ambition of the Reconstruction Amendments, which were adopted in the wake of the Civil War and sought to build a democracy with equal membership for marginalized persons. The Originalism Trap argues that the law must serve to make that promise of democracy real.

Seamlessly blending scholarship with sass and written for law people and laypeople alike, The Originalism Trap shows listeners that the Constitution belongs to them and how, by understanding its possibilities, they can use it to fight for their rights. As courts—and the Constitution—increasingly become political battlegrounds, The Originalism Trap is a necessary guide to what’s at stake and a vision for a more just future.

©2024 Madiba Dennie (P)2024 Random House Audio

Critic reviews

“Madiba Dennie has written a devastating indictment of the false facade of originalism. Full of sharp observations and delightful humor, it is an important contribution.”—Russell Feingold, former U.S. Senator and president of the American Constitution Society

“And just when we most need her, along comes Madiba K. Dennie—one of our most brilliant young legal voices. For anyone feeling helpless about a newly monarchic court that has stripped so much from so many, this book is a reminder that ordinary people have always had the power to reshape justice, and that the time to do so is right now.”—Dahlia Lithwick, senior legal correspondent for Slate and New York Times bestselling author of Lady Justice

“Madiba Dennie has written a magnificent book that shows how conservatives, through the guise of originalism, have taken away our rights and undermined equality. She offers a powerful alternative, inclusive constitutionalism, that provides a way forward to reclaim the Constitution and advance freedom and justice.”—Erwin Chemerinsky, dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley, School of Law and author of We the People

A compelling analysis of originalism's flaws AND argument for improvements in theory and practice

A great interrogation of legal theory throughout US history on its own, and even better after reading Justice Breyer's ‘Reading the Constitution’. Prof. Dennie's wit and lively style bring to life the cases and legal theories so expertly analyzed by Breyer, But it's her advocacy for a better way forward that sets her work apart. Will definitely listen to this book again. Wish I also bought the Kindle version - so many quotable quotes to save for later!

A searing criticism of originalism, and an uplifting introduction to the idea of inclusive constitutionalism

Dennie pretty much puts the idea of originalism through the woodchipper in this book, explaining in great detail why it's intellectually dishonest and morally repugnant. But she doesn't stop there; she offers an alternative called inclusive constitutionalism that emphasizes the as yet unfulfilled promise of the reconstruction amendments. She paints a fundamentally hopeful picture of what the country can become, while not shying away from acknowledging all the work needed to get there.

A ray of hope in a bleak time

Dennie exposes originalism’s hypocrisy and emptiness, provides models of how unjust judgments have been overturned in the past, and suggestions for how the present crisis can be fought, with clear explanations and wry humor. Her reading is excellent, friendly, and interesting, and the recording high quality. This is what an audiobook should be!