Amicus | Who Gets Left Out of Originalism?

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4 • 1.1K Ratings

🗓️ 9 August 2025

⏱️ 42 minutes

🔗️ Recording | iTunes | RSS

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Summary

The official history of America’s founding is often told as a whites-only story, a heroic tale of wealthy white men forging a new nation—with no mention of the people they excluded, displaced, or oppressed. But who gets left out of the story that “originalists” like to tell about the law? This week Mark Joseph Stern talks with Maggie Blackhawk, professor at NYU School of Law, and Gregory Ablavsky, a professor at Stanford Law School, about Native nations at the time of the founding, some of which were very much on the scene as the Constitution was being debated and ratified. What did they think about it? And does asking that question obscure a much more complicated—but more accurate—examination of the founding? Want more Amicus? Join Slate Plus to unlock weekly bonus episodes with exclusive legal analysis. Plus, you’ll access ad-free listening across all your favorite Slate podcasts. You can subscribe directly from the Amicus show page on Apple Podcasts and Spotify. Or, visit slate.com/amicusplus to get access wherever you listen. Learn more about your ad choices. Visit megaphone.fm/adchoices

Transcript

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0:00.0	Here we are. A couple of pints.
0:02.4	Great. Neck oil, yeah? As requested. So, what did you get up to this weekend? Well, funny story, actually. I befriended this panda, discovered he had a beautiful singing voice, taught him how to harmonise. We got a record deal, went on tour, went platinum in Basingstoke, then broke up due to creative differences. Right. So that's why there's a panda giving you the finger from across the street then. That's right, brother.
0:01.3	Stick your neck out.
0:02.5	Beaver. up due to creative differences. Right. So that's why there's a panda giving you the finger from across the street then.
0:22.3	That's right, brother.
0:23.4	Stick your neck out.
0:24.7	Beavertown. Never normal.
0:26.5	Visit drinkaware.com.ukau.uk.
0:28.3	Enjoy Beavertown beer responsibly.
0:29.9	Ready to launch your business?
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0:34.8	Shopify is specially designed to help you start, run and grow your business
0:38.9	with easy customizable themes that let you build your brand, marketing tools that get your
0:43.7	products out there. Integrated shipping solutions that actually save you time, from startups to scale
0:48.8	up online, in person and on the go. Shopify is made for entrepreneurs like you.
0:58.7	Sign up for your $1 a month trial at Shopify.com slash setup. I'm Mark Joseph Stern, and this is Amicus, Slate's podcast about the courts, law, and the Supreme Court.
1:21.1	That's a simple story I can tell myself, and now I can put Native people in that bucket or not in that bucket.
1:26.5	I can put Black Americans in that bucket or not in that bucket. I can put black Americans in that bucket or not in that bucket.
1:30.2	That's just not actually where we're at anymore, I think, as a country.
1:36.4	The official history of America's founding is often told as a whites-only story,
1:41.4	a heroic tale of wealthy white men forging a new nation with no mention of
1:47.1	the people they excluded, displaced, or oppressed. That version was always more mythology than fact,
	...

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