Madiba Dennie: The essential tenet of originalism is that the meaning of the Constitution is fixed in time, frozen at the moment of its enactment. And so, we have to interpret it the same way now that it was then. That’s a version of the Constitution that was okay with slavery. Why should it be that our rights are cabined by the most limited version of the framers’ imaginations? This is just your standard MAGA hat with a law degree, just regular, degular racism, and you don’t need to be fooled by it.

Alex Lovit: The U.S. Constitution is a short document. You could read the whole thing out loud, amendments and all, in less time than it’ll take you to listen to this podcast. But, of course, the devil is in the details, which is why there’s so many ways to interpret this brief text. My guest today says that conservative justices on the Supreme Court are using this interpretative malleability in bad faith. As a result, the very people that many constitutional amendments are meant to protect are getting excluded from our democracy.

You’re listening to The Context. It’s a show from the Charles F. Kettering Foundation about how to get democracy to work for everyone and why that’s so hard to do. I’m your host, Alex Lovit. Today I’m speaking with Madiba Dennie. She’s the author of “The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back.” She’s also deputy editor and senior contributor at the legal commentary site Balls & Strikes.

Madiba is going to tell us what the conservative super majority on the Supreme Court is up to, why it matters for each of us, and what we can do about it.

Madiba Dennie, welcome to The Context.

Madiba Dennie: Thanks so much for having me.

Alex Lovit: I really liked your book “The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take It Back.” Tell me, why did you decide to write that book?

Madiba Dennie: Well, I think the really sort of driving impetus that sort of pushed me over the edge to write a whole book about it was when the Dobbs draft leaked. I think that I had known for a long time that originalism was basically intellectually and morally bankrupt, but when the Dobbs draft leaked, I think that was sort of a shift for me, seeing this opinion and being like, okay, the Court is really going for it. They are really going to say that women didn’t have rights then, so we can’t have rights now. That’s basically what the opinion says.

That was just so horrifying to me, the idea that both they would do that, and that there would be a mass of people out here in the country who assumes that that must be the way that law works, must be the correct and appropriate way of making legal decisions, that they might not feel like they are empowered to say that there’s something both morally and legally wrong with this.

And so, I wanted people to know that they are right, they are justified in their outrage, that we can and should be making our legal decisions in a different way.

Alex Lovit: Just as a quick aside for listeners who may not know, the Dobbs decision was the decision overturning Roe vs. Wade, ending the constitutional right to reproductive freedom, and that was decided back in June of 2022. And you’ve just said that the justices made an originalist argument in the Dobbs decision. Could you just concisely describe what originalism means?

Madiba Dennie: Sure. Originalism is the idea that the meaning of the Constitution is fixed in time, and we have to understand the document today the same way that it theoretically would’ve been understood when it was enacted.

Alex Lovit: Well, thanks. That’s perfect. Now let’s get back to Dobbs. How is the Dobbs decision originalist?

Madiba Dennie: Right. So, Alito basically takes us on this amateur history tour in the course of the Dobbs opinion, and like counts up the number of various like laws on the books in some states or even some like colonies that he was looking at, pre-state laws, and says that—“I don’t see any evidence that abortion was a protected right, so you can’t have that right now.” And this is foolish for a variety of ways.

One is that the history is just wrong. Premier historical organizations submitted amicus briefs and have spoken out saying, at a minimum, abortion was protected—or at least it wasn’t even recognized as like having an abortion in the way that we might understand it today, until at least quickening, which was the term used to describe like when the first motion of the fetus was felt. And Alito just acts as if abortion has always been recognized as wrong, and so women can’t have that right. This is just an absurd way of doing law.

And so, on one level, there’s—you know, the history is just incorrect. But I think on a more important level, why should we be governed by this history in the first place? Like, why should it be that our rights are cabined by the most limited version of the framers’ imaginations as relayed to us through this game of historical telephone?

One more sort of glaring problem that I’ll raise was that there were two originalist decisions decided back-to-back in 2022. There was the Dobbs decision overturning Roe v. Wade and rescinding the right to abortion, and there was the Bruen decision, which dramatically expanded gun rights, saying that gun legislation is basically presumptively unconstitutional unless you can point to a sufficiently similar law—yeah, something that Clarence Thomas finds analogous enough—from sometime 200-ish years ago. He doesn’t really narrow in on precisely when, ‘cause it’s really a sort of flexible moving target for whether or not he likes the law. But so, we have these two back-to-back decisions.

And something astonishing that really emphasizes the illogicality of originalism is that in Bruen, the Court says, “Well, if states weren’t regulating guns in a particular way, it’s because they knew they didn’t have the authority to do so; it’s because they knew it was unconstitutional. That’s why they didn’t do it.” But in Dobbs—which again, they were decided on consecutive days—in Dobbs, the Court said, “Even if a state didn’t ban abortion, that doesn’t mean they thought they couldn’t.”

And so, in both cases, they’re using the absence of legislation to make directly conflicting inferences about the authority of the legislature, really exposing that all of this is just nonsense to produce the results the conservative legal movement wants.

Alex Lovit: My academic background is in history. It’s been kind of fun to see history be legally meaningful in the recent years, and then disappointing to see that it isn’t actually all that meaningful, that the Court is often ignoring the best historical experts. So, if they’re not really consistent in applying originalist principles and actually using the same method every time, is there a risk that we’re taking originalism more seriously than the originalists do?

Madiba Dennie: [Laughs] That’s a great question. I think that’s true. The people who are the self-proclaimed originalists, they are letting originalism shift and give them whatever it is they need in that moment. And so, this is part of why I don’t think there’s actually much to be gained by trying to beat originalists at their own game and say, “Oh, well, you see like if you consult this historical source, you didn’t actually have the correct understanding of history here. Like, a true, honest application of originalism would require this outcome instead.” They don’t care. [Laughs] That was never actually the point. Like, that wasn’t actually what they were setting out to achieve.

It was good marketing. It was good branding to say that this was an objective method and could produce consistent results, and that this was true to what the Constitution means. All of that sounds great. But in terms of what they were actually setting out to do, and in terms of what they actually have done, that is basically clearly furthering the goals of the conservative legal movement.

Something I say in the book is that basically the Venn diagram between the results that originalism produces and the policy platform of the republican party is a circle. It completely overlaps.

Alex Lovit: Well, can you spell out a little bit further, you know, what are the goals—so, if originalism is a bit of a veneer, if it’s more marketing than actual guiding practice, what are the goals that the Court is seeking?

Madiba Dennie: So, I would say that, as originalism ties—ostensibly—our constitutional understanding to a point in history, what they’re seeking to accomplish is to literally turn back time, to undo all of the advances of the Civil Rights movement, of the Labor Rights movement, of the Women’s Rights movement. They are trying to pare back all of the successful struggles for a more egalitarian society that have happened over time by sort of establishing a presumption that if it didn’t happen yet, there’s something wrong with it. It’s not okay. It is basically putting burden, from the start, on all of us who have ever had to fight for our rights.

Alex Lovit: You’ve written a whole book about originalism. Even if it is marketing, you think it’s important to kind of dismantle the argument for that marketing.

Madiba Dennie: Yeah.

Alex Lovit: Can you spell that out a little bit? Why was it important to explain the faults of originalism if originalists aren’t all that consistent in it, in the first place?

Madiba Dennie: So, you mentioned earlier the idea that some folks who might not even think of themselves as originalists are taking originalism more seriously than the self-proclaimed originalists are. And I think there is a real danger in that, and that it sort of inherently limits our legal interpretive tools. It’s sort of conceding this ground to them that originalism is a correct way of doing law in the first place.

Like, if you were trying to fight them on that ground and say, “Oh, well, the better originalist outcome is this,” you’re still saying there should be an originalist outcome. And I wanted people to understand that they don’t need to fight on that ground. I wanted folks to understand that basically originalists have been lying to them for decades.

Alex Lovit: Well, speaking of that, you’ve proposed an alternative way of interpreting the Constitution, which you call inclusive constitutionalism. What is inclusive constitutionalism?

Madiba Dennie: Well, the main idea of inclusive constitutionalism is basically that the purpose of the Constitution, as transformed by the Reconstruction Amendments, is to make an inclusive democracy real. I’ll take a step back in case any listeners aren’t as familiar with the Reconstruction Amendments off the bat. Reconstruction Amendments is the term that applies to those amendments that were ratified in the immediate aftermath of the Civil War, the Reconstruction era.

So, we have the Thirteenth Amendment, which constitutionalized the abolition of slavery with a notable and unfortunate exception for people who have been convicted of certain crimes. We have the Fourteenth Amendment, which extended equal protection of laws to all people, which established birthright citizenship, which provided for due process of law, protection for people’s like liberty and property right, and so on and so forth. There’s a lot packed into this amendment. It also tried to reduce the political power of insurrectionists, for what that’s worth. And we got the Fifteenth Amendment, as well, which constitutionalized a prohibition on racial discrimination in voting and elections.

And so, what we see here is this comprehensive approach to redefining the rights and redefining citizenship for the formerly enslaved Black people in America. We see that for the first time the Constitution rejects whole-cloth the racial caste system that the country was built on. And instead it’s trying to say, like, “actively pursue building a just society.”

The point of these amendments was to change citizenship, to like rethink what people’s rights are, to rethink the relationship between the federal government and the states, and what sort of responsibilities the federal government has to protect people’s rights. And this gets basically ignored by originalists, by and large. Like suddenly, when you reach the post-Civil War, originalism stops.

But I think that there is a really important lesson for us embodied in the Reconstruction Amendments, because originalists are telling us that everything has to stay the same; things can’t change. But the Reconstruction Amendments are literally instructing us to change. We got these amendments in order to remake society, in order to make it more equitable, more egalitarian, to actually include the people who elites had pushed out of the political system, to actually recognize their rights. And people have used the Reconstruction Amendments over time to further reevaluate, reconceptualize what their rights should look like, and to push for broader social acceptance, or like broader economic protection.

So, I think that this is what inclusive constitutionalism instructs us to do, is saying, take that seriously, this command that the Constitution gives us to build an inclusive, multiracial democracy.

Alex Lovit: Yeah. Well, and as you point out, the Reconstruction Amendments are just as much a part of the Constitution as anything else, so it’s just as valid to base interpretation on the Fourteenth Amendment as it is on the Second.

Madiba Dennie: Right. If not more valid. They sort of recast everything that came before it. We got just a fundamentally different way of thinking about the law and thinking about how our country should be structured in a way that everything sort of preceding the Reconstruction Amendments didn’t do at all. That’s a version of the Constitution that was okay with slavery. The Reconstruction Constitution is not.

Alex Lovit: I think a lot of constitutional scholars in recent years have soured a bit on the Constitution. You know, including some friends of yours are —

Madiba Dennie: Yeah.

Alex Lovit:—making pretty fundamental critiques suggesting potentially a constitutional convention; let’s start from scratch. You have a more optimistic view. Why do you think it’s useful to be more optimistic about what the current Constitution can do for us?

Madiba Dennie: Well, there are a couple of reasons here. I think one is, I don’t want to concede—I don’t want to give up the things that are already there, that like I would argue are already there. I am absolutely down with more amendments to the Constitution, but I don’t think I need to start from scratch. So that’s point one.

And I think point two is that we’ve also seen, as the right-wing movement has so watered down and diluted the Reconstruction Amendments, we see that if you have a sufficiently motivated and organized opposition, the best text can be basically read into nothingness. You know, we have the Fifteenth Amendment, which as you said, very straightforward: no racial discrimination in voting. And yet, we still had the Supreme Court gut the Voting Rights Act, which is the primary way that the federal government enforces the Fifteenth Amendment.

And so, even if we had new constitutional amendments, if we did not have a sort of method of interpretation to back that up, if we didn’t, you know, have a way of reading it, those amendments could still just wind up as words on paper. And without any actual meaning in our real lives. I don’t want us to think that we can just make a new amendment and everything will be fine, and then the conservative legal movement continues to just sort of make that amendment meaningless in practice.

So, we need to say, “This is how these amendments should be read. This is what these things should mean.” I think we need both of these. We need to do like the structural changes, but we also need the societal and interpretative changes, because one without the other is still going to leave a lot of people left out, left on the margins of society.

Alex Lovit: Well, so that’s a pretty powerful argument about a decision in the recent past that has been damaging to American democracy. Do you have your eye on any cases in this current court term? Oral argument’s just started. Do you have any cases that you’re worried about this term?

Madiba Dennie: So, as far as cases that we’ve already heard oral argument in, Skrmetti. Definitely Skrmetti. Skrmetti is the case about the rights of trans kids, where state passed a law that basically is explicitly discriminatory. The way the law works, it says that youths cannot access, like, hormone therapy if they are getting it in order to live as a—I’m using a lot of air quotes here [laughs]—who are like using this to like live as a different sex. So like live as a sex that is not their own. They like phrase it in some sort of offensive way like that.

So, it’s like, if a kid who was assigned male at birth wants to get hormone therapy because they are uncomfortable with the sound of their voice—they think it’s too high-pitched, it feels too feminine, so they want to lower the pitch of the voice to better conform with a male identity, that’s A-okay. The law doesn’t touch them.

But if a kid was assigned female at birth and also feels very uncomfortable with the pitch of the voice, and they also want to better conform to a male identity, that kid is not allowed to get hormone therapy under the law. So, that seems like pretty straightforward sex discrimination. It also seems like pretty straightforward discrimination against the status of just being transgender. This law is like motivated by hostility and animus. So, there are multiple equal-protection problems under the Fourteenth Amendment of the Constitution with this law.

And the Court is dominated with a right-wing super majority. And I don’t feel good about the odds of this case, honestly, which is deeply worrying for the trans kids in that state where it will apply, but also more broadly to literally everyone. Because then, if the Court upholds this law against a Fourteenth Amendment challenge, it’ll be saying that it is okay to pass a law that literally discriminates on the basis of sex, and it is okay to target a group of people, to target a marginalized population, and like enact a law to harm them. That’s horrifying.

And so, I think that it is very scary to be a trans kid in those states. But really, to be any person who is part of a community has been marginalized at any point in time, this case could be a really explicit threat.

Alex Lovit: Are there any trends that you’re worried about, ideas that you’re worried about being incorporated into the law that listeners should be aware of?

Madiba Dennie: Yeah, definitely. I think something that has been bubbling up with more and more frequency over time is basically constitutionalizing this like White grievance idea of like reverse discrimination, saying that like the real discrimination is trying to do something about discrimination. That’s how you get things like ending race-conscious admissions programs in schools, but it is not at all limited to that.

We have already seen conservative litigants try to extend this principle to say it’s illegal for the minority business development agency to focus on the development of minority businesses. Or it’s like the Latino History Museum to offer a fellowship to Latino history PhDs, saying that’s unconstitutional. Just like trying to target anything that sort of incorporates marginalized people into public life. Like any sort of—what they call DEI—like, any sort of like diversity, equity, and inclusion program; they target this as unconstitutional in a way that what’s really happening is just straight-up resegregation.

They’re using the mere presence of people of color, or women, or queer people, or so on and so forth; they’re using the mere existence of these people in these spaces as proof that something is afoot, that there’s some sort of unconstitutional like preference, discrimination happening here. And so, “You need to like get these people out of these spaces.” And there’s a pretty clear effort to resegregate our institutions. And perhaps we’ll get to, you know, society more broadly.

But certainly our institutions, like our workplaces, our cultural institutions—museums. Government institutions themselves, we’re seeing an effort to resegregate them, but under the guise of the Constitution, by claiming that this is actually preventing discrimination when what it is really doing is trying to bring back and further entrench these racially discriminatory hierarchies that the Constitution was amended, again, to get away from.

So, it’s this really—it’s this really sort of frustrating way of inverting what the amendments are literally supposed to do. It’s just claiming that up is down, claiming that the real racism is trying to stop racism, because it’s acknowledging race. And this is not smart. And also, it’s just racist. And I think that people have been too slow, reluctant to recognize that, and to call it what it is. They sort of give in to this framework of like, “Oh, there’s opposition to woke policies,” or, “There’s opposition to DEI.” But not really grappling with that by “woke” they just mean like, “a Black person is here”; by “DEI” they just mean like, “a woman has a job.”

And so, we need to understand that this is all actually about cloaking these really regressive, reactionary politics in the Constitution and just sort of upending everything it’s supposed to do.

Alex Lovit: Yeah, well, that’s pretty Orwellian, you know, using the very Civil Rights amendments of the Constitution and Civil Rights law to attack Civil Rights.

Madiba Dennie: Yeah.

Alex Lovit: Is there anything that being aware of that threat—how does that help us, for citizens to be aware that that’s a trend that we should be watching out for?

Madiba Dennie: I mean, I think it’s helpful to know about in that, you know, secrecy only serves the perpetrators, if they’re able to just sort of do this quietly. It makes their lives easier if people don’t really know that they’re doing that, because then they get to avoid any sort of friction. They get to avoid pushback.

If people know, like then they can start to fight back in any number of ways. Like filing amicus briefs, or pushing for different legislation. Or you could use any other number of tools. You can go to these law-makers’ chambers, or like go to their houses, or go to the courthouse and protest. Or you can come up with various ways of basically making their lives really uncomfortable.

I think that it can be useful to try to make it less painful or like less irritating for people to just have to like give in and do the right thing than it is for them to continue trying to do the wrong thing if you make it just like really insufferable for them. I think that, you know, once you know that this is happening, then you can at least start to think about what strategies or tactics are available to me to push back against this? But if you don’t know about it, then there’s no pushback to begin with. So, I guess knowledge is the first step.

Alex Lovit: Let’s talk a little bit about the elephant in the room, which is Donald Trump. So, he has recently been elected to a second term in the White House. He seems to be being a lot more aggressive in his second term than he was in his first, especially—

Madiba Dennie: Yes.

Alex Lovit:—about pushing legal limits. There’s this phrase that gets thrown around a lot, recently: constitutional crisis. And usually what people mean by that is a case where a court makes an order—and courts famously do not have an army, you know—and some other branch of government basically just ignores the court order. We’re seeing hints of this in the Trump administration right now.

Madiba Dennie: Oh yeah.

Alex Lovit: Some judges are claiming that he is violating court orders. J. D. Vance is out there saying, you know, maybe he should just ignore orders. Do you think that it’s likely we’re going to see a constitutional crisis in that kind of sense? And if so, what does that look like? How does that play out?

Madiba Dennie: Yes, absolutely. I think we are—yeah, we’re definitely going to be—if not already—actually yeah. We are already in a constitutional crisis.

Alex Lovit: You called it. It’s official.

Madiba Dennie: [Laughs] And that is only one of the constitutional crises that we are in. There are multiple constitutional crises happening right now. One of them is the rejection of court orders. I’ll admit, I do actually think there are some cases where it would be reasonable to ignore a court order. I think those circumstances—like, I can imagine some where I would be fine with that. But this is not one of them. [Laughs] And I think there’s a particular danger, as we’re talking about the Office of Management and Budget—like funding freeze, and the court orders around that—I think there’s a sort of dual problem in that, 1) you have the Trump administration usurping the congressional power of like appropriations, very sort of openly and flagrantly like violating all of those funding statutes and other regulations, taking away money that Congress—which has the power of the purse—set aside for a purpose. So like, they’re breaking that law in a way that’s very obvious. Like, there’s not like a dispute. [Laughs]

So, for them to break that law, and for the Court to then step in and say, “Hey, we see you breaking that law; stop that,” and Trump to say no—like, “Checks and balances, what are those?” This clear disregard of both other branches makes a really concerning statement about the extent to which they don’t care about the law.

The other constitutional crisis that’s been on my mind a lot recently is the role of Elon Musk in government. No one voted for this man. This man was not elected to anything. This man does not actually head a real government agency. He has not been appointed and confirmed by the Senate to anything. And yet, he is wielding astronomical amounts of executive power. Again, if Congress can set aside money and say, like, “We are giving this agency money to save lives,” and Elon Musk can then independently say, “No, you’re not; I don’t feel like it, so I’m taking that money away,” that’s a crisis. That is completely outside of the constitutional order, and that shouldn’t exist in a democracy. [Laughs]

Like, he’s literally just some guy. Like, he’s not a government actor. Like, this is a random rich racist South African dude who’s still bitter about the end of Apartheid, and yet he can apparently just saunter into government buildings and say, “Give me all your, like, information or I’m firing you”—and then he’s right, that like he can actually then fire those people? That doesn’t make a lick of sense! [Laughs] I’m going—I’m going to lose my mind about this.

Alex Lovit: Okay. Well, so the problems are pretty bad. I want to conclude here with a little bit of a discussion of what the solutions might be, what we might do about this. One thing I really like about your book is—you know, I read a lot of these kind of non-fiction books about some problem in law, politics, society. And the author lays out for 200 or 300 pages what the problem is. And you do that with style and substance. But usually, then, the last chapter—you get to the last chapter, which is the solutions chapter, and it’s pretty thin, and it’s not very convincing. In your book, the last chapter is the best chapter. So, I want to—

Madiba Dennie: Oh, thank you.

Alex Lovit:—I want to ask you some questions about this. So, first of all, one way that citizens have influence in the judicial system is obviously through jury service. So as it turns out, I actually was supposed to have jury duty today. I delayed it for this interview.

Madiba Dennie: Oh. [Laughs]

Alex Lovit: Tell me what I need to know going into jury service.

Madiba Dennie: Amazing. Okay. One of the ideas I discuss in the final chapter of “The Originalism Trap,” when I’m thinking about what role regular people can have in articulating their own constitutional vision, and like shaping how law really happens, is jury nullification. If you are on a jury, you can just say no. No matter what, if you don’t want to convict that person, you don’t have to. That’s what jury nullification is. If you believe it is unjust and believe that what they did should not be illegal, it doesn’t matter if they actually, you know, violated the terms of the law; you can just decide that that person’s not going to jail, or like this judgement is not going to be enforced.

So like, if you find yourself on a jury and someone is saying, you know, we need to convict this woman for terminating her pregnancy, or we need to convict this doctor for prescribing this medicine, you always have the option to say “not guilty.” So, you can just do that and let that doctor keep doing their thing, or like let that woman have some autonomy over her own body. This is, I think, a way that people can take some of their power back and can say for themselves what they think the law should be, and really actually like changing what the law is. Because you can stop it from applying in that circumstance.

Alex Lovit: So that’s one very practical tool. You know, the Supreme Court, famously, does not have a jury. And I think it can be difficult for people—you know, it’s lifetime appointments, you know, how do I have an influence on the Court? You have some examples in the book about cases where public opinion has had an influence on the court. Can you give me a couple of those, one or two of those examples of when in the past has public opinion been able to affect the Court’s decisions?

Madiba Dennie: One of my favorite examples is the Court rulings about desegregation, because the Montgomery Bus Boycott happened after Brown v. Board. So, Brown v. Board is where the Court said that segregated public schools were unconstitutional, but folks didn’t actually really know at that time whether or not the ruling was going to be cabined to just public schools, or whether it would apply more broadly throughout society. That was an open question.

And segregated buses were still a thing. Rosa Parks was arrested after refusing to give up her seat for a White passenger. And the City of Montgomery—tens of thousands of people boycotted for over a year, depriving the City of the bus fares. They basically said what they believed the Constitution meant, and that they said, you know, “I believe that segregation is unconstitutional. I believe that segregated buses are unlawful, and that like I have the right to take this bus and to sit where I please, and I’m going to basically act out that vision by saying that we’re not riding these buses at all if they’re going to be like this, because that’s unlawful.”

And I don’t think you can explain the Court’s later decision, saying, “Okay, yeah, segregated buses are unconstitutional,” without accounting for the fact that Black Montgomerians and allies had been saying so and protesting for a full year and change. I think that undoubtedly shaped how the Court came to its opinion.

And another example I really like, that I feel like is really illustrative, is the evolution of the Court’s gay rights jurisprudence, because you can see the shift over time from the ‘80s where the Court said that there was no problem with criminalizing consensual gay intimacy in like the privacy of people’s own homes—they said you can make that a crime. And then, in like 2003, the Court said, “Actually, that’s unconstitutional to make that a crime.” And then, in 2015, the Court said, “Actually, gay people have a constitutional right to marry just like straight people do.” And that wasn’t just the Court doing something because of its own devices. That was because people had been agitating and had been protesting, had been passing local laws, had been winning cases in state courts.

I think it’s important to recognize that in the case of those decisions, just as with the Montgomery Bus Boycott, the actual text of the Constitution didn’t change. What changed was the way people said that text should be understood. So, I think those are two examples that I think are two like really big ones in terms of like Supreme Court cases that are really helpful and hopeful, and that you can see how a group of dedicated, marginalized people, and people who supported them, were able to change cultural understandings, change what society would accept.

Because again, as you mentioned, you know, the Court doesn’t have armies. It doesn’t have the power of the purse. All it really has is people’s willingness to accept what it does. And so, if enough people declare that something is unacceptable, the Court can be forced to respond.

Alex Lovit: With all that in mind, [laughs]—so, if listeners to this show are thinking, you know, “I’m pretty worried about originalism; I’m pretty worried about the constitutional crisis we’re in right now”—what advice do you have for what citizens can do right now?

Madiba Dennie: I think my advice would come in two parts. Part one is: pick an issue. It is very easy to get overwhelmed with the abundance of bad that is happening. And so, I wouldn’t want people to try to do everything and then find themselves unable to do anything because they’re so burnt out and exhausted, or depressed just because of like the great weight of it all. So, I think you can choose something that you care about and just sort of like focus on a thing. You know, if we all sort of do a part, we’re still getting to the whole. You don’t have to try to do the whole part yourself.

So, step one, I think, would be sort of choosing a thing you care about. And then, step two would be finding a way to sort of act out that vision in the same way that, like, people who did the Montgomery Bus Boycott sort of acted out that they thought these buses were unlawful. Is there a way that you can sort of act on your legal vision?

You know, we mentioned the Thirteenth Amendment formally abolished slavery. I think that someone could argue that a constitutional right to be free from forced labor necessarily implies a constitutional right to stop laboring and negotiate your work conditions. If you want to like unionize your workplace, you can do so and claim it’s your constitutional right. Has the Court said it’s a constitutional right yet? No. But whatever. [Laughs] You can say it anyway, and act on it, and rally enough people to also start thinking, “Yeah, you know what? Unionizing is a constitutional right.” And start shifting that understanding as to what the law requires.

So, I think that it is going to vary issue by issue. There’s not like one set strategy, I think. But I think for whatever issue we care about, it is going to intersect with the law in some way, more likely than not, and we can find a way—working with our communities, working with our loved ones—to think about how can we sort of act out our vision? How do we sort of fake it ‘til we make it, and like make the sort of formal powers that be accept it after we get like enough regular people on board?

Alex Lovit: Well, Madiba Dennie, thank you for your mixture of optimism and practicality, and thank you for joining me on The Context.

Madiba Dennie: Thank you.

Alex Lovit: The Context is a production of the Charles F. Kettering Foundation. Our producers are George Drake, Junior and Emily Vaughn. Melinda Gilmore is our director of communications. The rest of our team includes Jamaal Bell, Tayo Clyburn, Jasmine Olaore, Darla Minnich, Maxine Thomas, and Bettina Wright. We’ll be back in two weeks with another conversation about democracy.

In the meantime, visit our website, Kettering.org, to learn more about the foundation or to sign up for our newsletter. If you have comments for the show, you can reach us at thecontext@kettering.org. If you like the show, leave us a rating or a review wherever you get your podcasts, or just tell a friend about us. I’m Alex Lovit. I’m a senior program officer and historian here at Kettering. Thanks for listening.

The views expressed during this program are critical to us having a productive dialog, but they do not reflect the views or opinions of the Kettering Foundation. The foundation’s podcast and related promotional activities should not be construed as an endorsement of its content. The foundation hereby disclaims liability to any party for direct, indirect, implied, punitive, special, incidental or other consequential damages that may arise in connection with this broadcast, which is provided as-is and without warrantees.

Transcripts are created on a rush deadline by a Kettering Foundation contractor and may contain small errors. The authoritative record is the audio recording.