Throughout the confirmation hearing of SCPTUS nominee Amy Coney Barrett, her subscription to the judicial philosophy of originalism has been a recurrent theme. The tenets of the philosophy, however, have been conflated, both by people who seek to misrepresent Barrett, and those who may not understand.
“So in English, 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,” said Barrett in an effort to explain clearly what she means when she calls herself an originalist. “So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.”
The philosophy is similar to that of “textualism,” which holds that any law should be interpreted based on its plain text. Originalism is typically a reference to the Constitution specifically, in the same spirit.
But this is not what the Senate Democrats or the media would have you believe, especially not this week, even after Barrett explained her philosophy during her testimony to the Senate Judiciary Committee.
Hillary Clinton responded to this explanation from Barrett by tweeting “At the time the Constitution was ratified, women couldn’t vote, much less be judges.”
Of course, the 19th Amendment allowing women to vote, is part of the Constitution, and as such, proponents of originalism would seek to apply it, but strictly based on the words it contains as they were written at the time.
Chicago Mayor Lori Lightfoot, someone who has already shown her disregard for the Constitution through her repeated dismissal of the Supremacy Clause when it comes to immigration, echoed Clinton’s tweet by saying “you ask a gay, black woman if she is an originalist? No, ma’am, I am not.”
Lightfoot cannot be given the benefit of the doubt with regard to simple ignorance considering she is a lawyer by trade.
This week, many Democratic politicians and members of the media have recently asserted that originalism is a form of subscription to the morals and ideals of the authors of the Constitution, and a commitment not to alter the law in a way that goes against this supposed set of values.
“If you want to be an ‘originalist’ in law, maybe you should go all the way. Cooking on a hearth. Leeches for medicine. An old mule for transportation. Or maybe you can recognize that the world changes,” wrote Dan Rather.
“Women couldn’t vote. Slavery was legal. AR-15s and the internet and electric lights didn’t exist. But originalism,” said Sen. Chris Murphy (D-CT).
Rep. Barbara Lee (D-CA) asserted that “An ‘originalist’ reading of the Constitution would disqualify Judge Barrett, or any woman, from serving on the Supreme Court or from owning property or voting.”
Chris Scalia is the son of one of society’s most recognized originalists, the late Justice Antonin Scalia, who also happened to be a mentor to the particular originalist at the center of this week’s controversy. Chris warned of this exact type of distortion before the hearing even began, writing in an Oct. 11 op-ed for the Wall Street Journal to “be on the lookout for these common and predictable misrepresentations of originalism,” during the Barrett hearing.
“The dominant form of originalism entails interpreting provisions of the Constitution according to the ‘original public meaning’ they bore when they were adopted,” explained Scalia, noting that there are “countless examples of this conflation of intent with public meaning.”
Scalia goes on to explain that his “favorite misunderstanding of originalism” is that it somehow includes the belief that the Constitution is “Infallible,” explaining that originalists do not believe that the “Constitution is an unerring document that should never be changed.”
“Originalists ask: Who has the authority to change the Constitution’s meaning? Who has the power to expand or limit rights based on the changing standards and mores?” explains Scalia. “Not judges but the people, through their elected representatives. Not only does the Constitution allow for amendment; it also establishes a system of representative government, separation of powers, and federalism that enables the law to adapt democratically to a changing society.”
Scalia also warned that Democratic senators would try to paint the philosophy of originalism as an “excuse to enshrine conservative police ends,” but that such assertions are “nonsense,” adding that “In cases involving criminal procedure or the rights of the accused, for example, originalist opinions often support progressive policy goals.”
The day after Scalia’s op-ed was published, almost as if on command, Pete Buttigieg proclaimed that “Not even the founding fathers would recognize the lengths that today’s dead-hand ‘originalism’ would go to in order to defend conservative preferences as though they are the only way to interpret written law.”
The same day, University of New Hampshire professor and Newsweek columnist Seth Abramson issued a “reminder, from an attorney, that ‘originalism’ is just a euphemism for conservative judicial activism.”
In an interview with the Charlie Rose Show, Justice Antonin Scalia once simply explained the philosophy of originalism to which he subscribed.
“What a weird notion,” Scalia said, “that a document changes its meaning, from decade to decade and it’s going to be up to the judges to decide what it means. Especially when this document makes an exception to democratic self governance.”
“I think it’s a very strange notion that what those things are is going to be decided from time to time by unelected judges,” Scalia added. “It seems to me the normal way anybody reads a text is, you know, ‘what does it mean?’ And if it’s an old text, ‘what did it mean when it was written or when it was adopted?’”