Original sins

It’s a tidy little philosophy, originalism. It says that in deciding how to apply the U.S. Constitution to modern matters, judges should just look to what the Founders meant when they ratified the document 232 years ago. As Judge Amy Coney Barrett put it, judges should interpret our Constitution and laws “as written, not as the judge wishes it were.”

But Barrett’s answers before the Senate Judiciary Committee nicely reveal how far too often, originalism becomes another convenient framework jurists use to cherry-pick ideas and land on desired outcomes.

On some questions — such as whether the president can unilaterally postpone the election — the Constitution does prescribe an answer, in black and white: That power belongs to Congress, without a doubt. Yet when Barrett got pitched this softball down the center of the plate, she whiffed. Some originalist.

On other questions, the Constitution provides reasonably clear guidance Barrett chooses to ignore. In 2017, for instance, she dissented from a ruling upholding the constitutionality of a law barring felons from owning guns. But an honest reading of history shows the Founders had no problem with such restrictions, believing them wholly consistent with the Second Amendment.

On still other controversies, an originalist reading of the Constitution offers precious little guidance, either because times have changed, because the Founders themselves clashed with one another, or both. The Fourth Amendment proclaims that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”; does that apply to iPhones with end-to-end encryption? How about warrantless GPS tracking of automobiles? Justice Antonin Scalia, Barrett’s mentor, tried to answer such a question back in 2012, pushing the round peg of technology into the square hole of history, and it didn’t go well.

Supreme Court jurisprudence is complicated. Originalism is too simple by half.