I'm Mark Joseph Stern, and this is Amicus, Slate's podcast about the courts, law, and the Supreme Court.

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

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

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

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. That version was always more mythology than fact,

and always incomplete.

In recent years, academics and journalists have tried to correct the record by including people who were cut out of the frame. We saw this much-needed update with the 1619 project,

and we're seeing it play out in the courts as well. In June, Justice Katanji Brown-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. As an example, she cited the colored

conventions, a series of meetings held throughout the 1800s during which black Americans express

their own interpretations of the law. This dispute between Thomas and Jackson made me wonder,

who gets left out of the story

that originalists like to tell about the law?

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.

What did they think about it?

And does asking that question risk squeezing Native nations into a system they never really

consented to?

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