How Originalism Hurts Women

It’s March, which means it’s Women’s History Month. This month, we’ll speak with women about their activism and resistance to fight for their rights and those around them. Today, we’re talking about the very sexy idea of constitutional interpretation. The Constitution, like any text, is open to interpretation. Where this gets hairy is when different judges, or justices, have vastly different methods of interpretation, typically based on their own bias, education, and lived experience. Where it gets even hairier is when women’s rights are on the line, and when one certain theory of constitutional interpretation is applied — one in which women aren’t even people in the eyes of the law.

It’s called originalism. Originalism dictates that present day readings of the Constitution should be dependent on the document’s “original public meaning,” meaning that we have to look back to the time of the Constitution’s writing and ratification to interpret its intent. The problem is that only certain people at that time had civil rights at all: white, land-owning men. While initially this was a fringe theory, originalism has grown to become a dominant legal framework, one followed by five of the nine justices on the Supreme Court. Many legal scholars are alarmed at its increased use because the stakes are so high.

In decisions across the country, originalism is being used to threaten the safety of women and bodily autonomy at large. As our guest Madiba K. Dennie wrote, “American law has not historically been good to women, and whatever progress there once was is now vulnerable to regression.”

Madiba K. Dennie, former counsel at the Brennan Center’s Democracy program, recently explored the consequences of using the Constitution in this way in an article for The Atlantic, “Originalism is going to get women killed.” She joins us today to discuss.