Amy Coney Barrett May Be An 'Originalist.' But It's Not 1787, And The Text Isn't Always The Text

  

Category:  News & Politics

Via:  john-russell  •  2 weeks ago  •  10 comments

By:   cogwbur

Amy Coney Barrett May Be An 'Originalist.' But It's Not 1787, And The Text Isn't Always The Text
There has never been a difficult constitutional question in our history that could be decided by the text alone, writes Kent Greenfield. The constitution is written at a level of generality that demands interpretation.

S E E D E D   C O N T E N T



October 14, 2020

  • Kent GreenfieldTwitter

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Is the Air Force unconstitutional? Sounds like a stupid question. But if you've been listening to the Senate hearings to consider the nomination of Judge Amy Coney Barrett to the Supreme Court, you would have reason to think otherwise.

Barrett has been proud to claim the mantle of originalism, popularized by her mentor Antonin Scalia. In her words, originalism means that the constitution's meaning does not change over time. It retains the "public meaning" it had when it was drafted in the 18th century. "The text is text," she said in her testimony, "and I understand it to have the meaning that it had at the time people ratified it. It does not change over time, and it is not up to me to update it." According to Barrett, "The law stays the same" even if it was written two centuries ago.

The benefit of this method, according to Barrett, is that it keeps judges from infusing law with their own preferences. "A judge must apply the law as it is written, not as she wishes it were."


The constitution is written at a level of generality that demands interpretation.

This simplistic view of what judges do is as misleading as it is common. How often have we heard that "judges should apply the law not make the law"? But the nature of legal texts is that they are static and have to be applied in new contexts.

There has never been a difficult constitutional question in our history that could be decided by the text alone. The constitution is written at a level of generality that demands interpretation.

Does the "liberty" protected by the Fourteenth Amendment include the right to have access to birth control pills? Judges have to decide, even if the text is not clear and such pills did not exist at the time of the drafting.

Does "freedom of speech" include the freedom to publish on the internet? Judges have to decide, even if the text is not clear and not a person alive in 1789 could have imagined HTML code.

Even easy questions demand interpretation.

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Take, for example, the Air Force. The Constitution, in Article I, gives Congress the ability "to raise and support armies" and " to provide and maintain a Navy." No where does the constitution give the Congress the power to create an air force — which is not surprising since the Wright brothers did not invent the airplane for another century.

Does the absence of explicit authority for creating an air force mean that the U.S. Air Force is unconstitutional? The "original public meaning" of Article I would not have included any thought of airplanes. And if the "text is text" and "the law stays the same" and "does not change over time" then Congress's creation of the Air Force in 1947 was beyond its authority.

But of course, no one thinks this. The Constitution as drafted in 1787 authorized Congress to create a military force to the full extent of what was possible at the time. One can either say that Congress's authority should be interpreted in light of the principle that the grant of power should be interpreted as broadly today as it was then, or one can say that "armies" and "navy" should be interpreted to include implicitly an air force. Either method leaves the explicit text behind, but is more loyal to the document than a strict interpretation would be.


When a judge says that those are the only tools available, then they are either patronizing those listening or misleading them.

The air force question is an easy question. But it requires interpretation. It requires judges to be honest that the text and the "original meaning" is incomplete at best. Even easy questions cannot be answered with those tools alone.

When a judge says that those are the only tools available, then they are either patronizing those listening or misleading them. All too often, this kind of simplistic description of what judges do is a way to hiding one's political views and predispositions behind a patina of judicial restraint.

If you think the Air Force is constitutional, then the text is not always the text. And you should be honest about that.

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JohnRussell
1  seeder  JohnRussell    2 weeks ago

another

Originalist Judges Have a Problem With Equality

https://www.bloomberg.com/opinion/articles/2020-10-06/supreme-court-originalism-has-a-problem-with-equality

Some legal scholars, and some judges, are “originalists”; they believe that judges should be governed by the “original public meaning” of the Constitution’s text. The late Justice   Antonin Scalia   was an originalist. So is Justice Clarence Thomas. And so is the latest Supreme Court nominee, Judge Amy Coney Barrett.

Debates about originalism have become  complicated . But one point is simple: A committed originalist is going to have to allow the national government to discriminate on the basis of sex and race.

Let’s spell that out. Judges who are committed to the “original public meaning” of the Constitution would almost certainly have to allow the federal government to say, “No women need apply.” They would probably have to conclude that if Congress wants federal agencies to pay men twice as much as women, the Constitution does not stand in the way.

Originalist judges would find it exceedingly difficult not to rule that under the Constitution, Congress can segregate the schools in the District of Columbia. Originalist judges would probably have to conclude that if Congress wants to restrict African-Americans to lower-level positions within the federal government, the Constitution is not an obstacle.

On originalist premises, a “whites only” policy would be constitutionally fine, insofar as we are speaking of the decisions of the U.S. government.

Here’s why. The Equal Protection Clause of the 14th Amendment, adopted in the aftermath of the Civil War, applies only to the states, which may not “deny to any person within its jurisdiction the equal protection of the laws." The Bill of Rights, which does apply to the federal government, does not contain anything like an Equal Protection Clause, or any kind of ban on discrimination on the basis of race or sex.

Why, then, is it generally agreed that the Constitution forbids the federal government from discriminating on those grounds? The answer can be found in 1954, with one of the most emphatically non-originalist decisions in the entire history of American law:   Bolling v. Sharpe .

The issue in the case was whether Congress could segregate the schools of the District of Columbia on the basis of race. The Supreme Court ruled that it could not. It said that the Due Process Clause of the Fifth Amendment   1   — ratified in 1791 and applying then only to the federal government — essentially includes the Equal Protection Clause, ratified in 1868. So much for originalism.

The Court’s explanation is worth quoting:   

The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause, as does the Fourteenth Amendment, which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The "equal protection of the laws" is a more explicit safeguard of prohibited unfairness than "due process of law," and therefore we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.

From the originalist point of view, that’s outrageous. The Due Process Clause of the Fifth Amendment says that no person shall “be deprived of life, liberty, or property, without due process of law.” It is preposterous to say that the original meaning of those words — in 1791! — was that the national government may not discriminate on the basis of race.

In Bolling v. Sharpe, the Supreme Court insisted that the meaning of the Constitution is not frozen in time: “In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government.”

Seeing the problem, originalists have struggled mightily, and somewhat desperately, to explain why their approach would not allow the national government to discriminate on the basis of race and sex.

Some originalists say that they would accept Supreme Court precedents, even if they depart from the original understanding. They emphasize the importance of stability in the law and point to the long-standing tradition of respect for precedents, even when they are wrong.

Thomas disagrees; he would follow the original meaning and reject precedents that depart from it. Barrett has not offered a firm view, but she seems to have some sympathy for Thomas’s position: “Originalists,” she   wrote   in 2017, “have difficulty identifying a principled justification for following such precedent, even when the consequences of overruling it would be extraordinarily disruptive.”

There is a broader point here. Many people find it appealing to say that judges should respect the original meaning of the Constitution. No one should want to be ruled by unelected judges. There are sophisticated forms of originalism, and they deserve to be   taken seriously .

But in too many cases, originalists end up speaking not for the founding generation, but for   contemporary political views  typically associated with the Republican Party — on property rights, on commercial advertising, on affirmative action programs, on gun rights, and much more.

In any case, the Constitution does not contain the instructions for its own interpretation. No provision of the U.S. founding document directs justices to be originalists. And in important areas, insistence on the original meaning of the constitutional text would make a mockery of constitutional rights that have made the U.S. a beacon to the world. For example, originalism would   obliterate freedom of speech   as the American legal system now understands it.

If it is taken seriously, originalism would produce large-scale changes in constitutional understandings. Licensing the federal government to discriminate on the basis of race and sex would be a mere start.

  1. "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

 
 
 
Just Jim NC TttH
1.1  Just Jim NC TttH  replied to  JohnRussell @1    2 weeks ago

Opinions do vary..................

Just a short example in a very good read...............

" Originalism is a theory focused on  process,   not on  substance . It is not “Conservative” with a big  C   focused on politics. It is conservative in the small  c   sense that it seeks to conserve the meaning of the Constitution as it was written. The fact is, a good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequences."

https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/

 
 
 
JohnRussell
1.1.1  seeder  JohnRussell  replied to  Just Jim NC TttH @1.1    2 weeks ago
The fact is, a good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequences."

Why have all the originalists on the Supreme Court been conservatives? 

 
 
 
Just Jim NC TttH
1.1.2  Just Jim NC TttH  replied to  JohnRussell @1.1.1    2 weeks ago

Think about the question you just asked. The answer lies within

 
 
 
JohnRussell
1.1.3  seeder  JohnRussell  replied to  Just Jim NC TttH @1.1.2    2 weeks ago

if you say so

 
 
 
JohnRussell
2  seeder  JohnRussell    2 weeks ago

This is what gets me about originalists , they act like they have the market on constitutional purity, and that their approach is "accurate". But it takes very little thought to realize that EVERY Supreme Court decision is an interpretation , then it just becomes which interpretation do you prefer.  The fact is that originalist driven SC decisions are no more valid than SC decisions not based on originalism. 

Yet Amy Barrett clung to her originalist approach as superior even to the extent that she was at the doorstep of admitting she would deny basic rights.  My suspicion is that when she gets on the Supreme Court she will hedge some on her strict devotion to original text, but that is up to her isnt it, and that is the problem. 

 
 
 
JohnRussell
2.1  seeder  JohnRussell  replied to  JohnRussell @2    2 weeks ago
Many people find it appealing to say that judges should respect the original meaning of the Constitution. No one should want to be ruled by unelected judges. There are sophisticated forms of originalism, and they deserve to be   taken seriously .

But in too many cases, originalists end up speaking not for the founding generation, but for   contemporary political views  typically associated with the Republican Party — on property rights, on commercial advertising, on affirmative action programs, on gun rights, and much more.

In any case, the Constitution does not contain the instructions for its own interpretation. No provision of the U.S. founding document directs justices to be originalists. And in important areas, insistence on the original meaning of the constitutional text would make a mockery of constitutional rights that have made the U.S. a beacon to the world. For example, originalism would   obliterate freedom of speech   as the American legal system now understands it.

https://www.bloomberg.com/opinion/articles/2020-10-06/supreme-court-originalism-has-a-problem-with-equality

 
 
 
Ozzwald
2.2  Ozzwald  replied to  JohnRussell @2    2 weeks ago
Yet Amy Barrett clung to her originalist approach as superior even to the extent that she was at the doorstep of admitting she would deny basic rights. 

Many people fail to realize that the Original Constitution included a Slavery Clause .

 
 
 
JohnRussell
3  seeder  JohnRussell    2 weeks ago
Take, for example, the Air Force. The Constitution, in Article I, gives Congress the ability "to raise and support armies" and " to provide and maintain a Navy." No where does the constitution give the Congress the power to create an air force — which is not surprising since the Wright brothers did not invent the airplane for another century. Does the absence of explicit authority for creating an air force mean that the U.S. Air Force is unconstitutional? The "original public meaning" of Article I would not have included any thought of airplanes. And if the "text is text" and "the law stays the same" and "does not change over time" then Congress's creation of the Air Force in 1947 was beyond its authority.

I think that some originalists might say that the term "armies" would encompass all forms of national self-defense that might arise. Logic similar to this was used to interpret the second amendment in the way the majority did.  But why is this correct?  If "armies" is to include more than land forces, why does the text say "Navy" ?  It says armies and navy because that is all they knew in 1790. And if originalism is based on what THEY  (the framers) knew, as opposed to also including what the world has learned since, it would indeed seem that there should be no US Air Force. 

But we don't live in 1790 anymore , and we need an air force, so "originalism" rationalizes the difference. Like anything else, it becomes then a pick and choose methodology.

 
 
 
Sparty On
4  Sparty On    2 weeks ago
“Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.”
- Justice Antonin Scalia

The mechanism to "interpret" the written Constitution has been in place since the beginning of our union.    It has been used 33 times at last count with 27 amendments to the Constitution ratified into law.    This "mechanism" directly/indirectly  involves all voting Americans through through the legislative branch.  Not just nine Judges sitting in DC.  

An entirely reasonable premise for a government that is; of the people, by the people and for the people.

That mechanism is still there .....  it hasn't gone anywhere ......

 
 
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