Navigating Historical Context in Constitutional Law

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?

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