South Florida Sun-Sentinel (Sunday)
Barrett’s ‘originalist’ stance makes sense
Amy ConeyBarrett, President Donald Trump’s Supreme Court nominee, is an “originalist.” Given that originalism is a term coined by lawyers, it shouldn’t surprise anyone that there aremany different flavors of originalism. But, asBarrett explained in her confirmation hearings, they all share the basic idea that the meaning of the Constitution can be found in the Constitution.
“So inEnglish,” she explained, “that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time. And it’s not up tometo update it or infusemy own policy views into it.”
I don’t understandwhy this should be a difficult concept to understand. And yet for some people, it remains not only incomprehensible but utterly contemptible.
Dan Rather, whofor decades atCBS News cast himself as a neutral reporter of facts, declared onTwitter the other day: “If youwant to be an ‘originalist’ in law, maybe you should go all theway. Cooking on a hearth. Leeches for medicine. An old mule for transportation. Ormaybe you can recognize that theworld changes.”
Rep. Barbara Lee, D-Calif., tweeted this gem of an insight: “An ‘originalist’ reading of the Constitutionwould disqualify Judge Barrett, or anywoman, fromserving on the Supreme Court or fromowning property or voting. ‘Originalism’ is a cover for deeply unpopular& un-democratic policies, not some kind of serious judicial philosophy.”
Sen. ChrisMurphy, D-Conn., blurted out:“Women couldn’t vote. Slaverywas legal. AR-15s and the internet and electric lights didn’t exist. But originalism.”
Peoplewhomock originalism subscribe to the view that the Constitution is a “living, breathing” document whose meaning changes with every generation. When I object to this idea, I often hear the kind of nonsense offered by Rather, Lee and Murphy: that if the Constitution didn’t change over time, Black peoplewould still be in chains, womenwouldn’t be able to vote, etc.
The problem is that they’re letting the “living Constitution” take credit for battles it didn’t win. Womenhave the vote because of the 19th Amendment. Itwas the 13th
Amendment that ended slavery, not the good intentions of Supreme Court justices.
Whenyou amend the Constitution, you’re changing its meaning according to the rules of the Constitution. No one “breathed” newmeaning into thewords; they added morewords.
Now, Iwould argue that thosenew wordswere in the spirit of the ideas that gave birth to this country and the Constitution. But that’s another debate, and people are free to disagree. Eitherway, these improvements to the Constitutionweren’t discovered in someliterary seminar reinterpreting the existing text. We changed the text.
By theway, if you believe that justices can invent newmeanings for the text, what would be your principled argument against the court ruling that a four-year term for presidents is simply another vestige of bygone days whenwe used leeches for medicine and cooked on a hearth?
I’m confident even the most rabid supporters of a living Constitution agree that the peaceful transfer of power is an obvious constitutional principle that courts, politicians, the military and citizens should all respect. Butwhy should they? Because that principle is popular? What if it’s unpopular at somepoint? What if peoplewant a dictator? Should justices take that into account? The originalist answerwould be “no,” because the Constitution’s text is clear. What is the living constitutionalist’s reason? Because dictatorship is icky?
Yes, of course things have changed since the founding era. Of course it takes serious legal and intellectual effort to figure out how, for example, free speech principleswork in an era of social media and the internet. That’s one reason originalists often come to different conclusions about howto interpret the Constitution and the relevant precedents.
But here’s the thing: They’re interpreting the actual Constitution.
What is the alternative? To listen to manyDemocrats in theBarrett hearings, the alternative is to look for the policy outcomes youwant and declare them constitutional. Many ofBarrett’s interrogators used precious time to tell heart-rending stories about real peoplewhohave suffered fromgun violence or medical crises. The barely unstated insinuation is that Supreme Court justices should ignore lawand rely on empathy alone. If that’s howit shouldwork, why have a court at all?