How Originalism Ate The Law: The Trap

Amicus With Dahlia Lithwick | Law, justice, and the courts

Slate Podcasts

News Commentary, Politics, Government, News

4.6 • 3.1K Ratings

🗓️ 11 May 2024

⏱️ 54 minutes

🔗️ Recording | iTunes | RSS

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Summary

Get your tickets for Amicus Live in Washington DC here. In the second part of our series on Amicus and at Slate.com, Dahlia Lithwick and Mark Joseph Stern are back on the originalism beat. This week they’re trying to understand the mechanisms of what Professor Saul Cornell calls “the originalism industrial complex” and how those mechanisms plug into the highest court in the land. They’re also asking how and why liberals failed to find an effective answer to originalism, even as the various “originalist” ways of deciding who’s history counts, what constitutional law counts, which people count, were supercharged by Trump’s SCOTUS picks. Madiba Dennie, author of The Originalism Trap, highlights how the Supreme Court turned to originalism to gut voting rights. In 2022, the US Supreme Court’s originalism binge ran roughshod over precedent and unleashed Dobbs and Bruen on the American people - Mark and Dahlia talk to a state Supreme Court justice about what it’s like trying to apply the law amid these constitutional earthquakes. In today’s Slate Plus bonus episode, Dahlia talks to AJ Jacobs about his year of living constitutionally, and she confesses to an attempt to smuggle contraband into One, First Street. Sign up for Slate Plus now to listen and support our show. Learn more about your ad choices. Visit megaphone.fm/adchoices

Transcript

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0:00.0	Hello?
0:02.0	Good morrow, Dalia.
0:04.0	Can I ask you before we start to just introduce yourself?
0:07.0	I'm A.J. Jacobs and I am a non-fiction writer
0:10.0	and my most recent book is The Year of Living Constitutionally,
0:15.0	which is all about originalism and the Constitution and how to save democracy.
0:20.0	And I just want to point out for listeners that AJ is in fact wearing a tricorn hat as we speak to each other.
0:28.0	So are you still wearing the hat when you kind of walk about or is this just for benefit of taping?
0:34.8	It's more for you, a little present for you.
0:37.2	And you have your musket too, hold on.
0:39.3	I don't.
0:40.3	No, that's your microphone.
0:41.0	I thought that was your, it what possessed you to grapple with
0:46.2	this problem of originalism by living it right by being the original originalist.
0:53.0	Just to give you some quick background, I wrote a book several years ago called The Year of Living
0:59.4	Biblically, and for that one I tried to follow all the rules of the Bible as literally as possible.
1:06.8	And I have thought even then that the Constitution we treated in a very similar way.
1:13.0	Back then I thought, well, I could do the year of living constitutionally.
1:16.5	This was like 15 years ago.
1:18.5	But then there was the Dobbs decision, the Bruin decision, this swing towards originalism on the Supreme Court, and I said now is the time to try to live constitutionally.
1:29.8	I'm going to follow it using the tools and mindset of 1789 and I'm going to express my
1:36.8	first amendment by writing pamphlets and I'm going to court our soldiers in my New York City
	...

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