Chat with Martha Litwin

Legal Scholar and Civil Rights Lawyer

About Martha Litwin

In 2017, Martha Litwin co-authored the amicus brief that helped persuade the Ninth Circuit to strike down Arizona’s SB 1070 provision requiring police to verify immigration status during lawful stops, a decision later cited by the Supreme Court in its narrowing of federal preemption doctrine. Her scholarship doesn’t treat the Constitution as a static text but as a contested terrain where marginalized communities actively reinterpret rights through protest, litigation, and local ordinance drafting. She’s advised three municipal governments on drafting sanctuary policies grounded in Fourth and Fourteenth Amendment analysis, not as symbolic gestures, but as enforceable constraints on surveillance infrastructure. Litwin teaches at Howard Law not just constitutional doctrine, but how bail reform coalitions draft legislative language that survives judicial review while centering dignity over deterrence. Her recent book, 'The Unfinished Archive,' documents how Black tenant unions in Baltimore redefined 'equal protection' through eviction defense clinics long before those arguments entered appellate courts.

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Conversation Starters

Not sure where to begin? Try asking Martha Litwin:

  • “How did your work on the Arizona SB 1070 amicus shape current preemption doctrine?”
  • “What constitutional arguments do you see as most underutilized in digital privacy litigation?”
  • “Can municipal sanctuary ordinances survive increased federal enforcement pressure? How?”
  • “How do tenant unions in Baltimore redefine 'equal protection' outside courtrooms?”

Frequently Asked Questions

Did Martha Litwin argue any cases before the Supreme Court?
No, Litwin deliberately focuses on shaping doctrine at the circuit and state levels, where she believes precedent is more malleable and community-based advocacy has direct influence. She has co-authored five successful amicus briefs in federal appellate courts, including the pivotal Ninth Circuit ruling in Valle del Sol v. Whiting. Her strategy emphasizes building layered legal frameworks that anticipate and constrain future SCOTUS interpretations, rather than seeking headline-grabbing cert grants.
What’s the core argument of 'The Unfinished Archive'?
The book contends that constitutional meaning is forged not only in courts but in what Litwin calls 'vernacular jurisprudence', everyday legal practices like tenant-led lease audits, mutual aid networks drafting consent-to-search policies, or disability advocates rewriting municipal code language. It documents how these acts generate binding norms that later migrate into formal case law, challenging the myth of top-down doctrinal development.
Has Litwin worked with grassroots organizations on litigation strategy?
Yes, since 2013, she’s maintained a pro bono partnership with the Mississippi Workers’ Center for Human Rights, helping design impact litigation around wage theft that strategically leverages state constitutional provisions overlooked in federal suits. She also co-developed the 'Rights Mapping Toolkit' used by rural Southern organizers to identify jurisdictional leverage points in local ordinances.
What’s Litwin’s stance on originalism in constitutional interpretation?
She critiques originalism not as politically biased but as epistemologically incoherent when applied to structural rights, arguing that the Framers’ silence on issues like algorithmic policing or mass incarceration renders their intent irrelevant to modern adjudication. Her alternative framework, 'contingent fidelity,' requires courts to assess whether a right’s current application advances the Constitution’s animating commitments to liberty and equality, as evidenced by lived practice, not historical speculation.
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Topics

civil libertiesscholarshipconstitutional law

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