How the rise of judicial originalism has shaped our economy

Make me Smart June 11, 2024 Transcript

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Kimberly Adams 

Okay, let me stop myself before I embarrass myself further. Let’s do the show. Hello everyone, I’m Kimberly Adams. Welcome back to Make Me Smart, where none of us is as smart as all of us.

Sabri Ben-Achour 

And I’m Sabri Ben-Achour in for Kai Ryssdal. Today is Tuesday, June 11. It’s decision season for the US Supreme Court, which means they are issuing rulings on a whole slew of major cases that deal with issues ranging from abortion medication restrictions to the power of federal agencies.

Kimberly Adams 

Or the lack thereof. And over time, one legal doctrine has guided more and more of the court’s decision making, and this is a concept called originalism. Legal scholar Madiba Dennie has a new book out about this called “The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back.” She’s here to make us smarter about the rise of originalism and why she thinks we should move beyond it. Welcome to the show. Madiba,

Madiba Dennie 

Hello. Thanks so much for having me.

Kimberly Adams 

So, first of all, can you give us a non-law school explanation of what originalism is?

Madiba Dennie 

Of course. Originalism is the idea that the Constitution’s meaning now has to be the same as it was when it was originally ratified. So, whatever the original public understanding was 200 odd years ago when the Constitution was first written, that meaning is still authoritative for our understanding today.

Sabri Ben-Achour 

I mean, how did that go from being a fringe legal theory to guiding the decision making of several members, current members and passed on the Supreme Court?

Madiba Dennie 

It used to be very commonplace. Generally understood that history could be a factor in assessing the Constitution’s meaning, but it was only as a backlash to the civil rights movement did the conservative legal movement start really asserting that history and tradition was the only way you can make decisions. We saw this immediately in the aftermath of Brown v. Board, where people who were opposed to the Supreme Court’s ruling saying that schools cannot be segregated constitutionally, said that, well, the people who wrote the Constitution, they didn’t intend that. They didn’t understand the Constitution to mean that states weren’t allowed to have segregated schools, and therefore this opinion is illegitimate. And that was the sort of genesis and this idea becoming more popular, and we’ve seen it push and push more, really getting adopted by Ronald Reagan’s justice department, and saying that this originalism idea should be the only metric for determining constitutionality,

Sabri Ben-Achour 

Doesn’t it in a way constraint, like if you’re, if you’re, if you are limited to what the Constitution said and what people way back then meant. Even if what they meant was horrible, if you’re limited to what they meant, doesn’t that at least sort of like limit what judges can say or do, because otherwise, aren’t you just, you know, whatever the decision might be, might be just dependent on the personal views or values of the judge reading it.

Madiba Dennie 

That is part of conservatives’ argument. Yeah, they advocate for originalism as a method of judicial restraint, saying that you know, this is a clear-cut path. You know what to look for. And so, it restrains judges from just sort of doing their own thing. But when you look at actually how originalism has been applied, it becomes very clear that it doesn’t actually impose any meaningful restraints on the judges. They pick and choose their favorite parts of history. They pick and choose how they want to define the right they’re looking for. What sources matter to them. All of these things come into play, and so really, all it does is allow them to launder their own personal views through the guise of historicism.

Kimberly Adams 

Yeah, you gave an example in your book of one of the arguments being used to support overturning Roe v. Wade came from a judge who was involved in like the witch trials or something?

Madiba Dennie 

Yes, Sir Matthew Hale literally had women tried for witchcraft. He was also one of the first illustrious legal minds that gave us the idea that a husband could not be prosecuted for sexually abusing his wife because they were married, and this was someone that Justice Sam Alito held up as a reputable source on the meaning of women’s rights.

Sabri Ben-Achour 

Wow. Okay,

Kimberly Adams 

So, let me ask another question because Sabri is clearly dumbstruck by that.

Madiba Dennie 

I mean, it’s sort of a grim, it’s funny, not haha funny, but it’s a grim sort of amusement in an if you don’t laugh, you’ll cry kind of way.

Kimberly Adams 

Yeah, because, I mean, every time originalism comes up in my very wonky DC circles, you don’t have to take it too far as an intellectual exercise before you’re like, well, wait a minute. If we go with what the founders intended, women wouldn’t be voting. Black people wouldn’t be voting. Native Americans wouldn’t even have a right to exist. I mean, we could go on and on. How do folks really wedded to this theory, including sitting Supreme Court justices, how do they, you know, sort of figure that out or navigate around it?

Madiba Dennie 

Well, I think that sometimes they’ll say that by using the original understanding, this is still legitimate, because we are doing what the people who are actually authorized to enact and ratify the Constitution, what they said. And if we want to do something different, then people are free to pass new amendments to the Constitution. But again, I think that that can only actually get you so far because we have amendments to the Constitution, such as the Reconstruction amendments, which are the ones that were passed in the wake of the civil war that were really sweeping measures to promote racial justice, but through the court’s matter of interpretation, they’ve watered those down into near meaningless anyway. So, it still doesn’t actually work, even though they try to package it up in a way as no, this can still work for a modern society, but it definitionally doesn’t.

Sabri Ben-Achour 

Yeah, you argue that the rise of originalism has eroded the rights of basically any American who’s not a wealthy white man. Why is that?

Madiba Dennie 

Well, I think that’s by design because when you are reversing rights to a time period where wealthy white guys were the only people who had rights recognized under law, you’re transporting the rest of the country to that time period and rolling their rights back as well. And basically, if you freeze the meaning of the Constitution in time, you can freeze the country in time too. And so, that’s why we’re seeing arguments like that in Dobbs saying, well, women don’t have a right to end their pregnancies because in this particular historical window I looked at, I didn’t see it there either. Never mind other historical windows, but I didn’t see it in that one. And this is why we’re also seeing an argument before the Supreme Court currently, where folks are saying it did not used to be a crime for domestic violence offenders to have guns, and so, it should be unconstitutional to prohibit gun ownership for domestic violence offenders now. That puts people, people’s lives at direct risk because their lives were at risk in the past, and this is the kind of twisted logic of originalism that the conservative legal movement has really pushed us into.

Kimberly Adams 

So, we’ve talked a bunch about sort of how this affects individual rights and sort of civil rights and things like that. But what about the economy? How has this sort of rise of originalism and the power it seems to hold, especially on the Supreme Court, shaped what our economy looks like?

Madiba Dennie 

I think there was a really interesting example just a few weeks ago in a case called CFPB versus Community Financial Services of America. That was about the legal standing of the CFPB, which serves to protect consumers finances.

Kimberly Adams

Yeah, the Consumer Financial Protection Bureau.

Madiba Dennie

Right. And something I thought was interesting about that case is because originalism claims to be objective, but you actually had two dueling original accounts in that case. One written by Justice Clarence Thomas and the majority, and one written by Justice Sam Alito and the dissent. So, I thought it was revealing in one in one way about how it’s not actually this clear cut easily the follow mechanism that they pretend that it is. But the other thing I thought was quite interesting was Alito’s argument was basically, at the time of the founding when the Constitution was originally made, there were no agencies that were funded in the same way that the CFPB is funded now, and therefore the funding structure is illegitimate, unconstitutional, and that would mean that everything the CFPB does to protect consumers, to stabilize financial markets, to hold bad actors accountable if they manipulate the markets and commit fraud. All of those protective actions would then be illegitimate too, and it would leave bad corporate actors free to run amok, basically. And that was the style of originalism that Sam Alito, joined by Justice Neil Gorsuch, in dissent, were pushing. Now it didn’t pan out this time because Justice Clarence Thomas had a different view of originalism. He said that he believes the term appropriations and the appropriations clause of the Constitution. He said, well, I looked at the history, and I think all that means is that you have to say what this pot of money is for, and that happened here, so I think we’re still good. And it sort of thankfully, because it could have been economically disastrous if the if the court had decided otherwise, but I think it just was a really illustrative example of the risks that originalism can pose, can impose to a functioning modern society.

Sabri Ben-Achour 

So well, if you know, if in the separation of powers that we have, if Congress is the mechanism by which we transmit values from society into law, and that’s what Congress is supposed to do. How do we have, what should the guideposts be for judges to interpret the Constitution? Because if Congress’s job is transmitting values, that’s maybe not what you want the judiciary to do. So, what should guide their interpretation, if not originalism?

Madiba Dennie 

Well, I think that instead of looking at a particular point in time as originalism insists that we do, I think we should be looking at principles, specifically the principles of the Reconstruction amendments, which were developed after the Civil War expressly to create a real, multiracial, inclusive democracy for the first time. And the court has never really treated these amendments with the same weight as they do other parts of the Constitution, and I think that really underserves the diversity of the country. It prevents us from having a fuller democracy. And we should be thinking about, how do we like, think about the Reconstruction amendments, goals of ending oppression, of bolstering full democratic participation, and if we are taking those objectives seriously, what does any other part of the Constitution mean? Like keeping in mind that it is a document designed for a purpose to facilitate this particular goal. It’s not. It’s not a neutral document that exists in the in the abstract, but it’s supposed to have a very real purpose in Americans lives. And so, I would argue that all government actors, all government institutions, including the court, should be working to take that purpose seriously, and further those goals.

Sabri Ben-Achour 

So basically, it’s like, if you know, if the Constitution is, you know, the foundation that we refer to, let’s look at the more recent parts of it that might be closer to reflecting to the democracy that we all, you know, that has evolved and that we hope to build.

Madiba Dennie 

I would say not just that’s part of it, but I would say not just the recent, the recent parts of it, because I don’t think it’s entirely about, you know, temporal arguments. I’m really concerned with the substance of how we produce an egalitarian democracy. I think that that’s really the core point, much more so than any given moment in time, because even the Reconstruction amendments, to be quite honest. As strong as they are, the understanding of them in 1868 is lesser than the way we understand it now. So, I wouldn’t just want to say, do originalism, but for the more recent amendments. I would instead want to carry out the principles of those amendments, take them to their logical conclusions, really extend them to all of the country’s population, rather than keeping people out of from our understanding of we the people because they were excluded from it before,

Sabri Ben-Achour 

Legal scholar Madiba Dennie author of “The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back.” Thank you so much. This was super interesting.

Kimberly Adams

Thanks.

Madiba Dennie 

Thank you. It was a pleasure.

Kimberly Adams 

I learned a lot. Just got smarter. Wow.

Sabri Ben-Achour

Me too.

Kimberly Adams

That bit about the witch trials really stopped me too. When I read it, I was like, what? I was just like, this is, this is how we’re making decisions at the at the highest court in the land. Got it. Got it. Hmm, I mean, there’s still a couple more really interesting cases to be decided the cycle, and it will be fascinating now that I kind of have this bouncing around in my head to look at the reasoning as these different decisions come down.

Sabri Ben-Achour 

Yeah, especially how if originalism is presented as a way to make decisions more objective, but in reality, it’s just as subjective as everything else, I think that will be an interesting lens to observe these cases through as well.

Kimberly Adams 

Yeah. Well, we’d love to hear your thoughts about this. What you think about the rise of originalism and how it’s playing out in the American legal system. Maybe, if you have any cases closer to you, like at the state or local level, where you’re seeing this play out. Let us know. 508-827-6278, also known as 508-U-B-SMART. We will be right back.

Sabri Ben-Achour 

Okay, time for some news.

Kimberly Adams 

All right, I’m going to go first because mine is related directly to the Constitution. This amazing piece in The New York Times about a slave narrative that was forgotten and resurfaced after nearly 170 years. Basically, this dude was digging around in the archives of some newspapers in Australia and found an article that was written by a guy named John S. Jacobs, who was a fugitive, an abolitionist, and had fled the United States and ended up living this super adventurous life. Whaling ships and gunships and like traveling all over the world after he escaped from slavery in North Carolina, also the brother of the very famous author Harriet Jacobs, who wrote the very famous book her 1861 autobiography, “Incidents in the Life of a Slave Girl.” And that was the first. I’m reading here from the New York Times: “The first published slave narrative written by a formerly enslaved African American woman, is now seen as a cornerstone of 19th-century literary canon.” So, her book was obviously about her experience, but what people didn’t know is that her brother was also out there. Alexander Hamilton style, writing like he was running out of time. So, I’m going to read this little stretch of this because it comes back to the Constitution. The 20,000-word text was called “The United States Governed by Six Hundred Thousand Despots,” obviously referring to the slave owners at the time. “The first half offered an account of the author’s birth into slavery in North Carolina around 1815, his escape from his master, his years on a whaling ship and then his departure from ‘the land of the free’ for the shores of Australia, where he went to work in a gold field. The second half was a long, blistering condemnation of the country he had left behind, in particular its revered founding document.” Quote: “‘That devil in sheepskin called the Constitution of the United States,’ the man wrote, is ‘the great chain that binds the north and south together, a union to rob and plunder the sons of Africa, a union cemented with human blood, and blackened with the guilt of 68 years.’”

Sabri Ben-Achour

Wow, wow, wow.

Kimberly Adams

Which just goes to show that the thoughts on how to interpret the U.S. Constitution have always been divided amongst the people actually living the experience of what it meant to live in the United States. So, this book has been published, and I’m really looking forward to getting it. It’s got a biography of Jacobs, and we’re going to learn more about him, and a lot of the history of him had been lost. The New York Times article is very fascinating, and that it gets to sort of how the researcher discovered it and what they were doing with it. It’s really cool. So anyhow, wanted to highlight that.

Sabri Ben-Achour 

Somebody better make that into a movie, that’s all. I would love that.

Kimberly Adams 

Oh my God, yeah.

Sabri Ben-Achour 

Don’t you think that would be amazing?

Kimberly Adams 

It would, especially if it delves into the relationship between him and his sister, and sort of like how they both escaped slavery, how they both became writers, how their paths kind of diverge, to her being more like, her writing and her book being a bit more sort of socially acceptable, and that it highlighted, sort of the suffering and the feminine things like that. And he was just like, burn it all down. So yeah, I would love to see that. Make it happen, people.

Sabri Ben-Achour 

Did they ever get to meet? I mean, do you think once he, like, fled? Was that it? Like they just never.

Kimberly Adams 

Oh, yeah, they met. Apparently, they were living together for a while. And the author, The New York Times piece says it looks like that they were even developing their books around the same time, and they may have been sort of intended to, you know, read together. And he’s buried next to her as well, but his tombstone only says. brother.

Sabri Ben-Achour 

Wow. Okay,

Kimberly Adams 

Yeah. So, I have one more quick thing, which is something we’ve discussed on the show before, which is, I was talking a couple months ago, I think about this group called Unite America, which is advocating for an end to partisan primaries. And the way that they’re doing that is they’re basically highlighting the fact that because so many primaries are partisan, and because so many seats in the House and Senate are like, safe part in terms of party, basically the primary voters decide who wins the election. And when you have a closed primary, and people outside of that party can’t vote, you’re disenfranchising anybody outside of that party having any decision in terms of who represents them, right? So, this is what they call the primary problem. So, they sent me an update this morning because there are a couple more primaries happening in the United States today, and they think that after today, about 50% of the U.S. House will have been elected effectively this far out from election day. And some of the stats they sent over are that 26 states will have held congressional primaries representing 254 House seats. About 90% of those districts are safe for Democrats or Republicans, so the primary election winner is near guarantee to take office. And so, only about 5% of the voting age population is expected to participate in these primary elections that predetermine the outcome, and therefore about 8 million independent voters have been excluded. And on their website, they have this chart tracking it, and it basically shows that so far, because we don’t have the results for tonight yet, about 45% of the U.S. House has been elected by just 4% of Americans.

Sabri Ben-Achour 

I mean, there are some primaries that are open, right?

Kimberly Adams 

Yeah, some places they do it, and then some places they do ranked choice, and some places you can switch parties back and forth. And, you know, there’s a lot of different systems. But if you’re in a state that say solidly Democrat, and is always Democrat, but you’re a Republican and they have a closed primary, you don’t get to vote even in the Democratic primary that’s effectively going to pick who represents you. Yeah, what’s your news?

Sabri Ben-Achour 

Not, definitely not as interesting as John Jacobs becoming a whaler and writer. But Meta is trying to, Meta wants to use data from its users in Europe. And Meta owns Instagram, WhatsApp, Facebook wants to use data from its users in Europe to train its artificial intelligence models, so that these models can give, I guess, kind of European answers to whatever European questions are asked. You know, so which, which makes sense, right? But there’s, you know, Europe takes privacy very seriously, and there’s already, there’s opposition to it before it’s even started. So, I mean, medicine out, sort of notices, telling people that this is what’s coming, and this is how you can opt out. But there’s already a campaign to prevent it before it starts. And you know, this would be, they would be training on public posts, so it’s not like private messages, but it would be things that are publicly visible. So, I don’t know. I just think it’s a very interesting view on, you know, the privacy debate and the scraping of data debate. You know, when you post something publicly, it’s sort of like when you’re outside, you can’t, at least in the U.S., for example, if you’re outside, walking around and you’re caught on camera, that’s both like, if you don’t want to be too bad for you, like wear a hat or whatever. You know that you don’t have a right to not be recorded if you’re out in public. But you know, different countries have different sort of mores around that, so it will be interesting to see if the quality of AI diverges for different regions, and how it’s different in different regions.

Kimberly Adams 

Yeah, especially in parts of the world where they don’t have, you know, sort of a robust privacy regulator, and these companies are probably just taking whatever information they want to train their models. Yeah. Okay, well, that is it for the news. Let’s move on to the mailbag.

Mailbag

Hi Kai and Kimberly. This is Godfrey from San Francisco. Jessie from Charleston, South Carolina. And I have a follow up question. It has me thinking and feeling a lot of things.

Kimberly Adams 

Recently, Kai and I were talking about the growing costs of making friends as an adult to sort of the emotional cost, as well as the financial cost with more people paying for things like gym memberships, classes, happy hours, to try to make friends, and we got this message about it.

Megan

This is Megan from Kalamazoo, Michigan. I have a new group of friends that I’ve made relatively recently, and it didn’t actually cost me that much. How it happened was I got a puppy last summer, and, I mean, I guess that cost money. But I was walking her and trying to socialize her, and found out that just down the street from me, in my neighborhood, there was three or four houses that had all sort of gotten to know each other, and they also had puppies and kids about my kids’ age, and we’ve been hanging out basically every weekend or so for the last year, and it’s been amazing. I was trying to socialize my dog, and I ended up socializing myself. It was pretty cool.

Kimberly Adams 

I love that. That’s great. And it’s so rare to hear like successful “I went out and made friends” stories in in adulthood, so congratulations, Megan. You’re an inspiration to all of us to go outside and speak to people.

Sabri Ben-Achour 

Yeah, yeah. I mean, how do you make friends as an adult? Not to open a whole can of worms.

Kimberly Adams 

Uh, I don’t really. No, it’s okay. I don’t really. I mean, I’m very lucky that I have a really robust network of friends. I’m incredibly fortunate that I have friends from childhood. Some friends from earlier in my career. People in my professional life who become friends. I have a good friend who basically we had interacted professionally a couple times, and she just decided that we should be closer friends, and she invited me out for drinks one day, and I was, I couldn’t, like, tell if it was a date or something like that. I didn’t really know what to do with it. So, she was like, no, I just think you’re cool. And I decided that we should be friends, and we have been hanging out, and it’s great. And you know, so she’s definitely better, and more intentional about that than I am. But I have an abundance of riches in that I struggle to kind of keep up with everyone. And so, yeah, I’m very lucky, and I know that’s not the case for everybody. What about you?

Sabri Ben-Achour 

I mean, I meet a lot of people in different ways. You know whether it’s, I’ve been friends at the gym or there’s a bunch of events that I go to and make friends at, or you know, my pottery class or whatever, but I find that.

Kimberly Adams

That you teach, we should say.

Sabri Ben-Achour 

Yeah, but it’s harder. It’s one thing to make friends. It’s a different matter to deepen those friendships because that requires consistent time spent, and that is something, you know, that’s hard. Let alone, you know if you’re in a relationship, which takes up time. Let alone if you’re in a relationship and have kids and a family, you know, so the time is, the time. That’s the sticker for me. But anyway, that story was wonderful. I’m so glad that Megan was able to make friends through her puppy. Super cute. But before we go, we are going to leave you with this week’s answer to the Make Me Smart question, which is, what’s something you thought you knew, but later found out you are wrong about? So, in time for Father’s Day this weekend, this week’s answer comes from Patrick Schumacher. He’s an executive producer of the TV series “Abbott Elementary.”

Kimberly Adams

Ah, love that show.

Patrick Schumacker

As far back as I can remember, I knew in my heart of hearts that I was never going to become a father. Yeah, true story. When I was eight years old, I asked my mother how old you had to be to get a vasectomy. I’m 44 now, and I’m still waiting for her to pick herself up off the floor and give me an answer. I used to think my reluctance stemmed from my being a child of an ugly divorce. What’s the point of having a family? Just ends badly. Two Christmases notwithstanding. And being a natural born worrier, I was certain I’d be an abject failure at fatherhood. Yeah, I was certain the bloodline would end with me. Of course, life does funny things. I fell in love. I got married. And then, for reasons I still don’t know if I can adequately explain, I became a dad. I’m doing okay at it. I think. I don’t know. I’m tired.

Kimberly Adams 

The refrain of parents all over the world. I’m tired. That’s a great story, though. I love that. And I love that show. It’s so clever. Thanks for sending that in, Patrick.

Sabri Ben-Achour 

Yeah. Also, I don’t think I knew what a vasectomy was when I was eight years old.

Kimberly Adams

Yeah, he was precocious, wasn’t he?

Sabri Ben-Achour 

Hmm, yeah. Well, we want to hear your answer to the Make Me Smart question. Our number is 508-827-6278, also known as 508-U-B-SMART.

Kimberly Adams 

Make Me smart is produced by Courtney Bergsieker. Ellen Rolfes writes our newsletter. Today’s program was engineered by Jay Siebold with mixing by Charlton Thorp. And our intern is Thalia Menchaca.

Sabri Ben-Achour 

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