October 14, 2020; Vox, New York Magazine, and Slate
It is 1787. A group of 55 men gathered together to consider amendments to the Articles of Confederation. Ultimately, 39 of them would agree to sign a new document that would replace those Articles and serve as the foundation for a new government of the United States of America. That document, the United States Constitution, did many things, but two key features were the following:
- It created a national government with three branches (legislative, executive and judicial).
- It divided power between the federal government and the states.
Shortly afterward, in order to win ratification, ten amendments (the Bill of Rights) were added in 1791 to protect individual liberties of US citizens—if you were white and male. Since then, of course, there have been 17 more amendments—some hugely important such as those extending the right to vote and abolishing slavery. But except for those amendments, some contend our laws should be interpreted based upon the meaning contained in the 233-year-old Constitution’s text. And the US Senate just added yesterday another “originalist” to the US Supreme Court: Amy Coney Barrett.
But what does originalism mean? The phrase only has a 40-year history, so those folks in Philadelphia wouldn’t even understand what contemporary originalists are talking about. (To be fair, antecedents date back to the 1930s. Still…)
Let’s start with the language of the Constitution, which has always been subject to interpretation. Many of its provisions were vague, often by design. The Founders themselves argued after ratification about its interpretation. And it should be noted that most judges are lawyers, not historians, so getting into the psyches of those who wrote the words to understand their intent is not that simple.
In a 2017 Notre Dame Law Review article, Barrett laid out the following definition:
Originalism maintains both that constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative. This theory stands in contrast to those that treat the Constitution’s meaning as susceptible to evolution over time. For an originalist, the meaning of the text is fixed so long as it is discoverable.
This definition leaves little room for change over time. We know that life is somewhat different than it was in 1787. Automatic weapons have replaced muskets. Computers, iPhones, and the internet substitute for other forms of communication. Women (including Barrett) and people of color hold positions in society that were not permissible in 1787. So, clearly, her definition, based on that of her mentor Justice Antonin Scalia, calls for some elaboration.
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Barrett claims that originalism favors neither liberals nor conservatives. If you look at constitutional history, you will find scant evidence to support this claim. Writing in New York Magazine, Eric Levitz points out that “the fact that the founders littered their document with ambiguous phrases—without providing any glossary—suggests that they were none too concerned with ensuring that future generations would adhere to their precise, contemporary intentions.”
These people were not stupid. They understood that language evolves over time and that words can have multiple meanings. And yet they left their document ambiguous anyway. Further, some of the Founders forthrightly advocated for a kind of living constitutionalism, with Madison arguing by the 1790s that the meaning of the Constitution evolved with public opinion.
Levitz further points to what he calls the “plainly pro-conservative implications” of the originalism approach to jurisprudence. Levitz observes that, “Defaulting to the intentions of 18th-century aristocrats will advantage reactionaries over progressives more often than not.” Originalism, in short, definitely leans right.
The other issue that come into play with originalists on the Supreme Court is that of precedence and how they will deal with cases that have be previously determined as set law. Barrett has addressed this problem in her academic writing, saying, “Adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education.” But, she states, along with her co-author John Copeland Nagle, that no one would propose to undo these decisions “even if they are wrong.” So, it looks like, even for a diehard originalist, it would be foolish to overrule every precedent they think was wrongly decided. But what is an originalist to do?
There is a solution. Writing in 2017, Barrett offers a few suggestions that might be taken on by the Court without undue chaos. The main suggestion is to “just not go there.” The Court determines what cases it will and will not hear, so it can simply agree not to hear cases that would legalize public school segregation (overturning Brown v. Board of Education) or declaring the dollar unconstitutional. It sounds simple…as long as other justices agree. And that is not always the case.
Who does originalism serve? Well, it’s an obvious point, but it’s worth noting that the framers were protecting white male landowners and merchants while disadvantaging (to put it mildly) women, enslaved people, and others. Decisions made through this lens can be seen in many Court outcomes that favor the wealthy.
As Dahlia Lithwick writes in response to her testimony before the Senate Judiciary Committee, Barrett has clearly maintained “an originalist’s view of the world. In so doing, she has worked to expand gun rights, limit abortion protections, and undermine the rights of workers, asylum-seekers, and immigrants.”—Carole Levine