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

Who Gets Left Out of Originalism?

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

Slate Podcasts

News Commentary, Politics, Government, News

4.6 • 3.1K Ratings

🗓️ 9 August 2025

⏱️ 42 minutes

🧾️ Download transcript

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

There are some things you should always check, like the hygiene rating on your local takeaway,

0:06.2

the setting on your razor, and whether the party actually is fancy dress.

0:11.1

The other thing you should check is your Experian credit report, especially if you're looking to borrow money.

0:17.2

It lets you understand what lenders see, so you can increase your chances of getting the best deals.

0:22.8

It's dead easy to check it, and completely free.

0:26.6

See it in seconds. Download the Experian app today. I'm Mark Joseph Stern, and this is Amicus, Slate's podcast about the courts, law, and the Supreme Court.

0:51.0

That's a simple story I can tell myself, and now I can put Native people in that bucket or not in that bucket.

0:56.4

I can put Black Americans in that bucket or not in that bucket.

1:00.1

That's just not actually where we're at anymore, I think, as a country.

1:06.4

The official history of America's founding is often told as a whites only story, a heroic tale of

1:13.1

wealthy white men forging a new nation with no mention of the people they excluded, displaced,

1:19.4

or oppressed. That version was always more mythology than fact, and always incomplete.

1:26.0

In recent years, academics and journalists have tried to correct

1:29.3

the record by including people who were cut out of the frame. We saw this much-needed update with the

1:34.9

1619 project, and we're seeing it play out in the courts as well. In June, Justice Katanji-Brown

1:41.3

Jackson called out Justice Clarence Thomas for relying on the views of a few dead white men to determine the meaning of civil rights, arguing that any honest originalist must look to, quote, a broader and more inclusive survey of historical sources.

1:57.4

As an example, she cited the colored conventions, a series of meetings held throughout the

2:02.3

1800s during which black Americans expressed their own interpretations of the law.

2:09.4

This dispute between Thomas and Jackson made me wonder, who gets left out of the story

2:15.0

that originalists like to tell about the law.

2:22.9

Well, before there even was a United States, there were Native Nations, some of which were very much on the scene as the Constitution was being debated and ratified.

2:28.4

What did they think about it?

...

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