The Originalism Trap by Madiba K. Dennie is a clear and concise excavation of the idea of originalism in our judiciary and how it has hurt our democracy. Dennie does a great job explaining through several lenses the ways in which our judiciary has rested power from democratic offices and instituted their policies by walking back decades of rights.

Dennie's arguments about how we can fix this issue were a bit optimistic from my perspective but I think this was a well-researched and written book, sure to appeal to those with an interest in US politics as well as legal issues.

THE ORIGINALISM TRAP by Madiba K. Dennie offers a well-organized and research-supported explanation of "How Extremists Stole the Constitution and How We the People Can Take it Back." Dennie argues that applying "originalism gives the judiciary extraordinary power to put historically marginalized people 'back in their place' and buttress the country's longstanding stratification of power and wealth." She convincingly points to numerous examples (e.g., Dobbs, upcoming decision in Rahimi on gun rights, court cases concerning trans youth in schools) where this has or could occur. It is scary to think about the ways that other previously guaranteed rights (e.g., same sex marriage, use of contraceptives, inter-racial marriage) could also be endangered or rescinded if the same logic were applied. Dennie devotes chapters to topics including the Due Process Clause, voting rights, and demographics (e.g., cases like Korematsu and other questions related to the Census). A final section focuses on a call for "Inclusive Constitutionalism" (emphasizing the transformative goals of the Reconstruction Amendments). Dennie assumes some basic knowledge of American institutions and processes, but this is a fascinating text for legal students and those interested in American history. Scholars like Erwin Chemerinsky (Dean of the UC Berkeley School of Law) and former Senator Russell Feingold have praised THE ORIGINALISM TRAP. Roughly thirty percent of the text is devoted to notes and bibliographic references.

Thank you Random House for providing this book for review consideration via NetGalley. All opinions are my own. No review was required in return for an advance reading copy and no review was promised.

I just finished The Originalism Trap, by Madiba K. Dennie.

I had listened to this author on several podcasts talking the book, so I was very glad when I had the opportunity to get an advance copy to review. I was glad I did, as it definitely lived up to my expectations.

The author starts by pointing out that originalism is a nice idea, at least in theory. But, once you spend any time thinking through the issues and the problems it presents, it becomes clear that originalism is far from a neutral way to interpret the Constitution. It is instead nothing more than an attempt to cherry pick history to serve the right-wing justice’s policy desires. As Dennie correctly notes, the Venn diagram between originalism’s results and conservative policy preferences results in a complete overlap.

Dennie immediately starts with the Supreme Court’s opinion in Dobbs to show how history was cherry picked. Despite the fact that there was no historical evidence of abortion being prohibited at the time of the founding of the country, the court decided to quote a 17th century male chauvinist judge, whose opinions promoted witch burning and spousal abuse as their support to overturn one of the nation’s “super precedents” of Roe.

She then moves on from there to the Bruen decision on guns, in which prominent legal historians have called “embarrassing” and instead of being based on “history, text and tradition”, it was instead based on “fiction, fantasy and mythology.” But, then instead of just limiting the discussion to the ruling itself, the author does a very good job showing the terrible lower court rulings that have followed as the inevitable result of having to follow the “reasoning” of Bruen.

The author accurate sums up originalism by saying, “Originalism observes that white supremacy dominated the country’s past and reasons that it must also dominate the country’s future.” The book makes the strongest possible case that white supremacy is result, and a goal of originalism.

The section on substantive due process is also excellent. The author again shows how originalism is a threat to individual rights. She also again proves that it just perpetuates the white supremacy and the sexism that has dominated American history, especially in the founding era.

The chapter on voter suppression was another great one.

One indication that something is an A+ book is when I make so many highlights of so many great passages that I can’t keep track of how many I have. This book certainly meets that standard.

I give this book an A+, which also means it is inducted into my Hall of Fame. Amazon, Goodreads and NetGalley require grades on a 1-5 star system. In my personal conversion system, an A+ equates to 5 stars. (A or A+: 5 stars, B+: 4 stars, B: 3 stars, C: 2 stars, D or F: 1 star).
I have already placed a preorder for the Audible audiobook version, so I will be able to enjoy it again when it is released.

This review has been posted at NetGalley, Goodreads and my blog, Mr. Book’s Book Reviews. It will be posted at Amazon when it is released on June 4.

Thanks to NetGalley and the publisher for this ARC!
I did enjoy this book and it was thought provoking, and well reasoned. However, as someone currently laboring in the legal field, I have trouble seeing this lens as anything but pie in the sky with our current constitutional-crisis-in-the-making. It was fun to hope though.