Amy Coney Barrett's Judicial Philosophy Doesn't Hold Up to Scrutiny
S E E D E D C O N T E N T
The Constitution should be the sturdy vessel of our ideals and aspirations, not a derelict sailing ship locked in the ice of a world far from our own.
9:28 AM ET Angus King Jr. U.S. Senator from Maine and Heather Cox Richardson Professor of history at Boston College 
Samuel Corum / Getty /
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During her confirmation hearings, Amy Coney Barrett argued that the judicial philosophy known as "originalism" should guide judges in their interpretation and application of constitutional principles. Most famously associated with the late Justice Antonin Scalia (for whom Judge Barrett clerked), this idea sounds simple and sensible: In determining what the Constitution permits, a judge must first look to the plain meaning of the text, and if that isn't clear, then apply what was in the minds of the 55 men who wrote it in 1787. Period. Anything else is "judicial lawmaking."
In some cases, interpreting the Constitution with an originalist lens is pretty easy; for example, the Constitution says that the president must be at least 35 years old ("35" means, well, 35), that each state has two senators (not three and not one), and that Congress is authorized to establish and support an Army and a Navy. But wait a minute. What about the Air Force? Is it mentioned in the text? Nope. Is there any ambiguity in the text? Again, no. It doesn't say "armed forces"; it explicitly says "Army" and "Navy." Did the Framers have in mind the Air Force 115 years before the Wright brothers? Not likely.
So is the Air Force unconstitutional, even though it clearly fails both prongs of the "originalist" test? No, a more reasonable and obvious interpretation is that the Framers intended that the country be protected and that the Air Force is a logical extension of that concept, even though it wasn't contemplated in 1787. This isn't judicial lawmaking; it's judges doing what they're hired to do.
And these are the easy cases. How about terms like due process ? What does due mean? Is a process that locks you up for life without access to a lawyer "due"? How about an "unreasonable" search and seizure? Is wiretapping "unreasonable"? (We wonder what the Framers thought about wiretapping or cyber theft.) Does "freedom of speech" apply to corporations, which didn't exist in their modern form in 1787?
To put it bluntly, the whole premise of originalism is nonsense in that it pretends to make the work of the Supreme Court look straightforward and mechanical, like "calling balls and strikes," in Justice John Roberts's famous phase. But defining equal protection , due process , or unreasonable is not. We need a Supreme Court to interpret the intent and appropriate application of the terms of the Constitution to particular cases (many not dreamed of by the Framers).
Originalism is an intellectual cloak drummed up (somewhat recently) to dignify a profoundly retrogressive view of the Constitution as a straitjacket on the ability of the federal government to act on behalf of the public. Its real purpose is to justify a return to the legal environment of the early 1930s, when the Court routinely struck down essential elements of the New Deal. Business regulation, Social Security, and Medicare? Not so fast. The Affordable Care Act, environmental protections, a woman's right to choose? Forget it. And this despite the Constitution's preamble, which states that one of its basic purposes is to "promote the general welfare."
This does not mean that the Court should be totally unmoored from the text of the Constitution or the intent of the Framers and act as an unchecked super-legislature (with lifetime tenure to boot). Clearly, this would be inconsistent with the underlying democratic idea that the American people should be the ultimate decision makers through regular elections and the actions of their elected representatives. The Court must interpret and apply the terms of the Constitution according to their plain meaning (where there is a plain meaning) and the understanding and intent of the Framers (where there was such a thing). But it also must recognize that our understanding of our principles and values has expanded over time, and it must interpret the law in the context of that growth.
The intellectual dishonesty of many originalists is exposed by their reluctance to follow their own logic regarding certain landmark cases, now widely recognized as milestones in our national progress toward "a more perfect union." The easiest examples are Brown v. Board of Education and Loving v. Virginia , the former concerning school integration, the latter, interracial marriage, illegal in Virginia until Loving in 1967. Both decisions explicitly fail the originalist test, yet Judge Barrett asserts they were correctly decided and endorses them as "super-precedents," a convenient dodge that evades the troubling implications of her supposedly simple theory of constitutional interpretation.
The real problem with the originalist theory is that it allows no room for ethical, moral, or political growth. If the Framers didn't think it, it's not allowed.
Adrian Vermeule: Beyond originalism
Thomas Jefferson, who wrote the Declaration of Independence and paid close attention to the drafting of the Constitution from his official post in France, understood this danger explicitly: "I am certainly not an advocate for frequent and untried changes in laws and constitutions," he wrote in an 1816 letter addressing what he perceived to be weaknesses in the new government, "but … laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors."
The fact is that the Framers knew very well that they could not reliably look into the future and anticipate the changes that were to come—whether they be the necessity of an Air Force or the manifest unfairness of segregated schools—and therefore gave us a document that defines the structure of our government, but also accommodates advances in our understanding of the essential elements of human dignity.
The Constitution should be the sturdy vessel of our ideals and aspirations, not a derelict sailing ship locked in the ice of a world far from our own.
This story is part of the project "The Battle for the Constitution," in partnership with the National Constitution Center.
We want to hear what you think about this article. Submit a letter to the editor or write to letters@theatlantic.com.
Angus King Jr. is a U.S. senator from Maine. Heather Cox Richardson, a professor of history at Boston College, is the author of How the South Won the Civil War: Oligarchy, Democracy, and the Continuing Struggle for the Soul of America .
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We can't do anything at the moment, but future SC justices should not be strict originalists.
because... the original intent of a law does not matter in today's world?
or you simply want to rewrite the constitution via the judiciary?
I find the whole being a strict originalists almost comical. If not just plain bullshit.
There is no way in hell things are the same as they were 200+ years ago.
Acting like we should have 18th century laws and interpretations in the 21st century is a farce.
just curious, what part of our constitution is out dated?
Slavery Clause
Yes and it was obviated by the 13th Amendment.
I'm fairly sure we brought that up to date with an amendment a really long time ago.
next?
Just curious myself, how many laws on the books are in the constitution?
changing the conversation to something else will not save you this time.
name a part of the constitution that is outdated?
you should have lots of examples if you believe the constitution as currently written is comical and outdated
. so... do tell.
Times change, laws change.
There are lots of examples of laws that are not specifically written in the constitution.
So how could one hold a strict view on constitutionalism when laws are not specifically mentioned?
so, you can not give one valid example of the constitution being outdated as written.
any further argument is moot.
the principals / laws contained in the constitution will not go out of style any time soon
if at any time something in the constitution becomes outdated?
we can "update it by passing an amendment as "originally intended"
so, back to.... what part do ya want to change that you say is currently outdated?
The constitution is a basis. A foundation, that deals with function.
A judge ruling on court cases should not hold that as the only standard bearer.
no, it is the law, as written - word for word
the constitution as written is not outdated.
if it ever becomes outdated we can pass an amendment to update it as originally intended.
or...
if the judiciary changes the constitution? the united states will get divorced.
I thought you are talking Originalist views. It was in the ORIGINAL version and is outdated, just like you asked for...
sorry brother, but the constitution as written is not outdated.
and, using the amendment process to keep the constitution up to date is an originalist viewpoint.
the idea that we should just reimagine what the words mean and let the judiciary change the constitution? that is a neo-stupid viewpoint.
Trump thinks it is outdated, shouldn't you?
Actually, YOU are changing the conversation by mischaracterizing what Ender said.
He SAID "being a strict originalists almost comical", NOT that the Constitution is comical and he NEVER said ANYTHING was outdated.
So WHY are you insisting that Ender defend a statement that he never made?
Really? Then how the fuck did 'A well regulated militia' disappear from the law?
No one but you said it is.
Hardly revelatory.
I thought that you and yours think that the Constitution has ALREADY been changed by the Judiciary. Since we're still a Union, guess not...
its gone? nope... still there.
militia = body of people in a state
and we are regulated by our state's gun laws.
I never said that. so go fish elsewhere.
and yes, if the left succeeds in changing the constitution by any means other than an amendment?
the usa will be getting divorced
didja know we have already killed one the lefts plan to change the intent of our constitution?
you have heard of the "National Popular Vote Interstate Compact yes?
that bs is now dead on arrival...
how?
Supreme Court rules electoral college representatives must honor choice of state’s voters
the best laid plans of mice and leftwing-nuts... LOL
Up above your comment by two posts.......................
It sure as hell isn't ANYTHING like the founders meant it to be, you know, that originalist thingy.
Bullshit.
Oh and it's FALSE that state gun laws do NOT regulate militias.
He said Trump's thinks so, not that it is.
Another fail Jim.
Wow, your dots got crossed 8.
That SCOTUS opinion had NOTHING to do with the National Popular Vote Interstate Compact.
But go on pretending all you want...
I never said that compact was the case before the court.... LOL
but the ruling ended all dreams of that National Popular Vote Interstate Compact regardless.
applies... to the compact, regardless if you like it or not.
Your comment merely prove just how clueless you are about how the court works 8.
You neither understand the SCOTUS opinion or the content of the legislation. Just stop.
Congress writes the laws....
the President signs the laws in effect.....
the Supreme Court interprets the Constitutionality of those laws.
Any party whining and complaining about the make up of the Court needs to start winning elections
Glad to see that you and yours encourage a Biden Administration to alter the make up of the court.
presidents fill current vacancies on the court
anarchists create new positions on the court just to alter the decisions.
matters not... biden is not going to win.
So by YOUR standard, Jefferson and Lincoln were anarchists.
did they add justices to the court simply to change the decisions?
Go look it up and learn some history 8. it will do you good.
so the answer is ya got nothing....
thanks for playing
I already GAVE you the names of the Presidents 8. I have no motivation to spoon feed you information that I highly doubt you give a fuck about anyway. Do your own research, learn something, educate YOURSELF.
I already have and they did not add justices simply to sway the courts decisions...
that is how I know you have nothing.
if I'm wrong? prove it or go away, the choice is yours
You never have anything
How about a link for some of that deep dive research you did 8? I'll take the one that you think makes the best argument for you claim.
BTFW, HOW can you be wrong after your research 8? Just give me a link...
So I see you still haven't posted a link 8. Guess that deep dive was into the shallow end.
Here's an article for your edification:
Bottom line is that ACB's views just do not hold up to the scrutiny of hard core leftist liberal Democrats who insist on their way or not at all in the case of ACB! Most others are fine with her.
I will not disagree with your assertion on Barrett.
However, as I suppose being a right wing conservative republican what are your expectations of this new 6-3 majority on the court. I am referring to your desires on the national agenda and also your desires for what the conservative majority will do for you personally.
technically still 5 - 4 with roberts on the fence. he seems to swing both ways.
but it is true that barrett will make roberts swing vote irrelevant.
As I have said on more than one occasion, I am neither Republican nor Democrat. I am a right leaning conservative registered Independent. As for my desires, it would take more time than I have to go into right now as I have a dinner engagement to go to, so I will have to get back to you.
Well that wouldn't hold true if Barrett and the other Catholic Justices practice what she preached about Catholic judges with conscientious objections are morally and legally required to recuse themselves.
Can't name three? C'mon. Show your colors. Quit dancing.
Made an error. My post 2.1.4 was supposed to reply to post 2.1.2.
Not 2.1.3
Must have been a long dinner.
The roots of Theocratic governance has always been here. The past two decades are witness to it's rise, not so much for it's popularity, but rather for it's power.
Barrett and Alito are bricks in the wall.
Barrett and Alito are bricks in the wall.
Having religious beliefs is not disqualifying to be a Justice
Jim Jones had religious beliefs.
he was not picked to be a justice and he also ate every day...
how many meals have you skipped because jim jones?
Of course liberals are against originalism, they know republican appointed justices aren't radicals, so they see so no danger from interpreting the Constitution as a "living document." After all, they are the ones who turn the Constitution's meaning on it's head for partisan gain. It's okay for Sotomayor to ignore the text of the Constitution and the laws passed by Congress, because she does it it ways they like. But if Republicans appointed justices like the Sotomayors of the world, it would be a different story. But Democrats never seem to realize that things never remain the same and the wheel turns (witness their shock over their destruction of the judicial filibuster being used against them). You'd think, given their hysterics, the Trump Presidency would have scared them straight about giving a path to arbitrary power to an unscupulous President but apparently not. They don't seem to realize that someday there will be a President who actually will do the thinks they claim Trump did.
Should the Angus King's of the world have their way, Republican Justices, no longer bound to the text of the Constitution , might decide the exigencies of Covid mean the President's term should be six years and cancel the election. The Constitution just "evolved" and there's no argument to counter that. Similarly, if the Democrats win the Senate and Presidency and try to pack the Court with partisan democrats, the constitution might "evolve" again and Court might rule the number of justices is limited to 9. watching screeching democrats burned at their own game would be pretty funny though.
Originalists claim they are not interpreting the constitution they are merely following it. I disagree , as do many others. Every single Supreme Court decision in history has been an interpretation of some clause in the Constitution. The issue is should there be a frozen in time basis for the interpretation which bears no connection to modern medicine, science, industrialism, ecology, the rights of women and people of color, etc, or should the basis for interpretation evolve with the way society evolves over, in this case, centuries.
Why do we have a written Constitution John, if the text has no meaning? What's the point?
Nice try John -
In the context of United States law, originalism is a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding "at the time it was adopted". This concept views the Constitution as stable from the time of enactment and that the meaning of its contents can be changed only by the steps set out in Article Five. This notion stands in contrast to the concept of the Living Constitution, which asserts that the Constitution should be interpreted based on the context of the current times, even if such interpretation is different from the original interpretations of the document.
The term originated in the 1980s. Originalism is an umbrella term for interpretative methods that hold to the "fixation thesis", the notion that an utterance's semantic content is fixed at the time it is uttered. Originalists seek one of two alternative sources of meaning:
Such theories share the view that there is an identifiable original intent or original meaning, contemporaneous with the ratification of a constitution or statute, which should govern its subsequent interpretation. The divisions between the theories relate to what exactly that identifiable original intent or original meaning is: the intentions of the authors or the ratifiers, the original meaning of the text, a combination of the two, or the original meaning of the text but not its expected application.
huh?
Yep. I guess we should do away with all laws and any order, if it is not ordained in the vague constitution...
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I wonder what the ABA would think of this argument against someone they gave their highest rating to.
Dr. Mengele was a fine surgeon but there were other issues.
This sounds like a real non-issue, just something to try and make ACB seem less worthy of the position she will soon hold.
It won't work, as she is undoubtedly qualified.
Subscribing to an extremist philosophy does not make one qualified. In fact, just the opposite. Subscribing to an extremist philosophy renders one less than qualified.
She isn't extreme. ABA gave her it highest rating, do they often give them out to extremes (as a lawyer, you should know)?
Scalia's explanation is compelling, and unanswerable:
The Living Constitution kills the actual Constitution — When judges abandon originalism and the original meaning to the text of the Constitution, it is merely a matter of time before the Constitution itself is abandoned.
In the long run, non-originalism triumphant and rampant is the death knell of the Constitution. As I suggested earlier, the whole purpose of the Constitution is to prevent a future society from doing whatsoever it wants to do. To change, to evolve, you don't need a constitution. All you need is a legislature, as well as a ballot box. Things will change as fast as you want. You want to create new rights and/or destroy old ones? A legislature and the electoral franchise are all that you need. The only reason you need a constitution is because there are some things which you don't want a majority to be able to change.
That's my most important function as a judge in the American legal system. I have to tell the majority to take a hike. I tell them: “I don't care what you want. The Bill of Rights says you cannot do it.”
Now, if there is no fixed absolute, if the Constitution evolves to mean what it ought to mean today, what makes you think the majority is going to leave it to judges to decide what the Constitution ought to mean? The people comprising the popular or legislative majority will do that only if they think the decisions of the of the courts will be supportive of their particular interests, values, and opinions. If there are no fixed legal standards, if the justices on the Supreme Court are supposed to tell us what are the evolving standards of decency that reflect a maturing society, a majority of the people and its political leadership will look for judges who agree with the majority as to what the Constitution means. And so we will have the absolutely crazy system in which we conduct a mini-plebiscite on the meaning of the Constitution every time we select a person to fill a vacancy on the Supreme Court...
The American people have figured out what is going on. If we are selecting lawyers, if we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If on the other hand, we’re picking people to draw out of their own conscience and experience a new constitution with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right and the other right. We want to pick people that would write the new constitution that we would want.
And that is why you hear in the discourse on this subject, people talking about moderate, we want moderate judges. What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean? There is no such thing as a moderate interpretation of the text. Would you ask a lawyer, “Draw me a moderate contract?” The only way the word has any meaning is if you are looking for someone to write a law, to write a constitution, rather than to interpret one. The moderate judge is the one who will devise the new constitution that most people would approve of...
The Living Constitution + Majoritarianism = Recipe for Destruction — The Living Constitution has only been around for about 50 years. But it is already appears poised to undermine 200 years of the rule of law:
The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take, that are favored by the majority, is a recipe for destruction of what we have had for 200 years.
So, your assertion is that 'the minority' should rule?
And the 'living Constitution' kills the actual Constitution? Implication that the Constitution thrives better as a 'dead document'?
This too. When The Constitution was written the authors of that document couldn't envision the changes their new nation would have to endure. Even the question of Slavery seriously threatened everything they tried to achieve. Not to mention the very existence of something like a cell phone. The document is a living document, it breathes and the right wing is doing it's best to suffocate it.
the majority in your state governs your state as designed in the constitution.
what the left wants is the national majority to govern all states - which is one of the main things the constitution protects us from in the first place. so they want to change it. but can't
is that 'the minority' should rule?
not at all. My assertion is the minority has rights that deserve protection from the majority,
Implication that the Constitution thrives better as a 'dead document'?.
the implication is that it’s better to have a constitution than to not have one. Because If you believe the constitution evolves, then it doesn’t really exist,
also, our constitution is not dead if by dead you mean that it never changes. That’s what the amendment process is for.
The Constitution was written the authors of that document couldn't envision the changes their new nation would have to endure.
that’s why their is an amendment process, if necessary. Otherwise the principles enunciated in the document are timeless. The first amendment applies to the Internet era as well as the printing press. What part of the constitution is outdated by cell phones,
This is all nonsense, and that is exactly the point. No one knows what the text "really means". Originalists interpret what it means in one way and other judges interpret the text in other ways. It is inaccurate to say that originalists know what it "really" means.
In the Heller decision the originalists interpreted the one sentence of the second amendment one way and the dissent in the case interpreted that one sentence in a different way. The dissent wasn't "wrong" , it just didnt have enough votes.
If an originalist interpretation was used, Brown vs Board of education , the Supreme Court decision that desegregated public schools,would have went the other way. Are you trying to tell us that an originalist interpretation that kept American schools segregated would have been the correct decision because that is what the founders wanted? It's nonsense.
We have a pretty good idea, though. There is usually a lot of evidence for what legislators think their own text means. It's not 100%, and reasonable people can disagree. Still, we have records of debates on the legislation or the Constitution. We have the body of legal tradition surrounding it. It's not that deep of a mystery.
However, there are people who want to change what a word means to suit their own political agenda. We see that a lot in modern politics.
I frequently see critics of originalism overstate what originalism is. They also make the erroneous assumption that any judge who favors originalism does so to only the most extreme degree.
On the contrary, Judge Barrett described herself as conceiving of a much looser definition of originalism in her hearing before the committee. She acknowledged that the text of the Constitution often reflects concepts held by the founders that can be extrapolated to modern circumstances they could not have foreseen.
The more traditional view on this issue is strict vs. loose constructionism (or originalism vs. modernism), but it is not - and never has been - an either/or choice. It's a spectrum and judges sit all along that spectrum. An individual judge will move around on the spectrum from case to case.
Politicians, however, want guarantees from their judges. If a judge is guaranteeing they will rule a certain way before the case is presented, then they aren't a very good judge. All those Senators who went to law school should know that.
personally, I find it amazing how well our constitution has handled the test of time.
there are a few mistakes, like lack of term limits for all of congress which results in way too much corruption, but other than that it has done a fair job.
term limits for congress would be an amazingly good amendment.
letting today's marxist / communist bent left change anything in our constitution would be insane.
Insufficient experience would have at least been a legitimate approach for objecting to her nomination. Still, even Barrett’s experience compares pretty favorably to that of Elena Kagan.
And the fact that they gave her RBG office is a slap in the face to RBG who is not even cold in her grave yet. The GOP will regret their actions to openly try to drag down RBG's reputation and prestige.
Where is her office supposed to be? How many vacant associate justice offices do you think they have?
What has anyone done to openly drag down RBG’s reputation and prestige?