Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: Who Gets Left Out of Originalism?
Release Date: August 9, 2025
Host: Mark Joseph Stern
Guests: Professor Maggie Blackhawk (NYU School of Law), Professor Gregory Oblovsky (Stanford Law School)

Introduction to the Episode and Main Theme

In the Amicus episode titled “Who Gets Left Out of Originalism?”, host Mark Joseph Stern delves deep into the complexities of originalism—a legal philosophy that interprets the Constitution based on its original meaning at the time it was enacted. The episode scrutinizes the narratives often excluded from this interpretation, particularly focusing on Native American perspectives and their implications for contemporary legal discourse.

The Myth vs. Reality of America's Founding

Mark Joseph Stern opens by challenging the traditional portrayal of America's founding as a purely heroic endeavor led by wealthy white men. He points out that this narrative largely omits the experiences and contributions of marginalized groups who were excluded, displaced, or oppressed during the nation's formation. Stern states:

“The official history of America's founding is often told as a whites only story... that version was always more mythology than fact, and always incomplete.” ([01:41])

This sets the stage for examining how modern legal interpretations, especially originalism, may perpetuate these incomplete narratives.

Justice Ketanji Brown Jackson Critiques Originalism

The discussion highlights a significant moment in June when Justice Ketanji Brown Jackson criticized Justice Clarence Thomas for his originalist approach. Jackson argued that Thomas relied excessively on the perspectives of a limited group of historical figures, neglecting a broader and more inclusive array of sources. She emphasized the importance of incorporating diverse historical records, such as the Colored Conventions where Black Americans articulated their own legal interpretations.

“...Justice Ketanji Brown Jackson called out Justice Clarence Thomas for relying on the views of a few dead white men...” ([02:20])

This critique underscores the limitations of originalism in capturing the full scope of constitutional meaning.

Excluding Native Perspectives from Originalist Narratives

Stern's conversation with Professors Blackhawk and Oblovsky centers on the exclusion of Native American perspectives from originalist interpretations. The central question they explore is: What did Native nations, who were integral yet often unacknowledged participants, think about the Constitution?

Maggie Blackhawk notes at [01:26]: “That's a simple story I can tell myself. And now I can put native people in that bucket or not in that bucket... that’s just not actually where we're at anymore, I think as a country.”

The discussion reveals that Native nations were neither fully included in nor completely excluded from the constitutional framework, presenting a more nuanced reality than originalism typically accounts for.

Historical Complexity of Native Nations and the Constitution

Professor Gregory Oblovsky elaborates on the geopolitical landscape during the Constitution's formation, highlighting that much of what would become the United States was still Native territory. He explains:

“The federal government and the new United States claimed authority over much more territory than it could actually practically govern. Right. That large chunks of what became the United States were Native territory...” ([07:07])

This historical context illustrates the precarious position Native nations held vis-à-vis the new federal government and the Constitution's promises.

Impact of Originalism on Native Sovereignty

Blackhawk critically examines the Constitution's contradictory stance on Native peoples—acknowledging them as sovereign nations while simultaneously subordinating them within the legal framework. She asserts:

“To think that this constitutional moment was so pivotal, I think is to misunderstand it as a document that formed a nation state that included an excluded Native people.” ([14:37])

Blackhawk argues that originalism fails to capture the ongoing colonization and the sustained efforts to marginalize Native sovereignty, thus undermining the Constitution's intended protections.

Challenges in Incorporating Rich History into Legal Frameworks

The conversation addresses the difficulties historians face in presenting complex, multifaceted histories to courts that often prefer simplified narratives. Oblovsky responds to concerns about whether originalism can accommodate such complexity:

“I reject the idea that we have to sort of tell deceptive stories. Right. It's just a question of highlighting different aspects of the history for different audiences.” ([18:55])

He emphasizes the need for scholars to present clear and compelling historical evidence within the constraints of legal discourse, even if it means adapting the presentation for different audiences.

Unlearning Simplistic Historical Narratives

Mark Joseph Stern challenges the entrenched simplistic narratives by questioning the feasibility of renegotiating the foundational stories used in originalist interpretations. He turns to Blackhawk for solutions:

“Is that a good entry point into just unlearning this simplistic frame?... acknowledging that different peoples were governed and treated very differently under the Constitution.” ([32:51])

Blackhawk introduces the concept of "Borderlands Constitutionalism"—a framework that recognizes the dynamic and diverse influences on the Constitution, moving away from the notion of a single, universally applicable document.

Conclusions and the Path Forward

In the concluding segments, both professors advocate for a more inclusive and empirically grounded approach to constitutional history. Blackhawk warns against allowing oversimplified legal narratives to perpetuate misconceptions about Native peoples:

“We can't imagine that we're trying to capture that imaginary within that constitutional framework, rather than trying to say the Constitution codified Native sovereignty...” ([17:33])

Oblovsky echoes the sentiment, urging historians and legal scholars to uphold professional historical standards while navigating the constraints of legal argumentation:

“I think it's really important to stand by those standards... to engage these arguments head on while also trying to push back in other ways.” ([37:31])

The episode concludes on an optimistic note, emphasizing the importance of rigorous, truthful history in reshaping legal interpretations and challenging entrenched originalist frameworks.

Key Takeaways

• Originalism's Limitations: The originalist approach often excludes marginalized narratives, particularly those of Native Americans, thereby perpetuating incomplete constitutional interpretations.

• Historical Complexity: Understanding the Constitution requires acknowledging the intricate and contested relationship between the early United States and Native nations.

• Inclusive Legal Discourse: Scholars must strive to incorporate diverse historical perspectives into legal arguments, despite institutional resistance to complex narratives.

• Reimagining Constitutionalism: Concepts like Borderlands Constitutionalism offer pathways to more nuanced and equitable interpretations of constitutional law.

Notable Quotes with Timestamps

• Maggie Blackhawk on excluding Native perspectives:
  “That's a simple story I can tell myself... that’s just not actually where we're at anymore.” ([01:26])

• Gregory Oblovsky on Native nations' views:
  “The federal government and the new United States claimed authority... much chunks... were Native territory.” ([07:07])

• Maggie Blackhawk on constitutional misunderstandings:
  “To think that this constitutional moment was so pivotal... that included an excluded Native people.” ([14:37])

• Gregory Oblovsky on presenting history:
  “I reject the idea that we have to sort of tell deceptive stories... different aspects of the history for different audiences.” ([18:55])

• Maggie Blackhawk on colonialism's impact:
  “...ending different forms of government and organization... cannot actually lean on fixation.” ([23:21])

• Gregory Oblovsky on courts and history:
  “Courts are never going to be good at history... they are equipped to do law.” ([37:31])

This comprehensive exploration in “Who Gets Left Out of Originalism?” challenges listeners to reconsider the foundational narratives of American constitutional law and underscores the necessity of inclusive historical discourse in shaping just and equitable legal interpretations.