Amicus | How Originalism Ate The Law: What We Can Do About It
May 22, 2024
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Justice Todd Eddins and Madiba Dennie discuss how originalism has impacted the law, offering solutions to combat its effects. They delve into the consequences of originalist interpretations, the importance of dissenting opinions, and the need for a balance between tradition and adaptability in shaping the law.
Advocate for inclusive constitutionalism to promote a multiracial and equitable democracy.
Embrace a holistic approach to constitutional interpretation, considering values, purposes, and societal standards.
Deep dives
The Call for Inclusive Constitutionalism
The discussion challenges the limitations of originalism and living constitutionalism by proposing a new approach termed inclusive constitutionalism. This approach emphasizes interpreting the constitution to include and benefit everyone, aligning with the liberatory goals of the Reconstruction Amendments. By advocating for a constitution that serves a multiracial and inclusive democracy, the speaker argues for interpreting provisions through this lens to advance towards a more equitable and progressive society.
The Need for a Comprehensive Approach to Interpretation
The conversation underscores the importance of a holistic approach to constitutional interpretation, emphasizing the values, purposes, and spirit of the constitution as a whole. By moving beyond selective historical references and embracing a broader understanding that considers human dignity and evolving societal standards, the speaker advocates for a more nuanced and contextual view of constitutional law.
Critiquing Originalism as a Democracy Suppression Tool
A critical examination of originalism reveals its potential as a tool for suppressing democracy by tethering constitutional interpretation solely to the framers' intentions. The dialogue highlights how originalism restricts the evolution and adaptability of the constitution, thereby diminishing the active participation of citizens in shaping constitutional meanings and governance. By elevating the significance of democratic engagement and challenging originalist constraints, the discussion urges for a more inclusive and participatory constitutional framework.
Empowering Judicial Dissent and State Courts' Role
The discussion advocates for the proactive role of dissenting opinions in shaping legal discourse and mobilizing public engagement. It emphasizes the pivotal function of state high courts in providing enhanced constitutional protections beyond federal interpretations, utilizing state constitutions to safeguard individual rights. By embracing dissent and encouraging state-level activism, the conversation underscores the potential for judicial independence and public influence in safeguarding constitutional values.
In the third and final part of our How Originalism Ate the Law series, Dahlia Lithwick and Mark Joseph Stern are joined by Justice Todd Eddins of the Hawaii Supreme Court and Madiba Dennie, author of The Originalism Trap. Being trapped by originalism is a choice, one that judges, lawyers, and the American people do not have to accede to. Our expert panel offers ideas and action points for pushing back against a mode of constitutional interpretation that has had deadly consequences. And they answer questions from our listeners.