Throughout Judge Amy Coney Barrett’s confirmation hearings, one word kept coming up: originalism. It’s this word that Democrats are now trying to hold against her.
Barrett has described herself as an originalist and/or textualist, meaning her judicial philosophy is to stick to the original public meaning of the law and the Constitution.
“So in English,” she explained, “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. 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.”
There are, of course, different interpretations of originalism. The late Justice Antonin Scalia, Barrett’s mentor and one of the most well-known originalists, believed textualism confined judges “closely to the written text of the Constitution, the known views of the founders, and the operating language of the statues,” as Stephen Hayward put it. Justice Clarence Thomas, another well-known originalist on the bench, would include the Declaration of Independence and the principles of natural law in his docket of authoritative guides as well, Hayward noted.
But let’s talk about what originalism is not, because liberals are deliberately misrepresenting it in an effort to paint Barrett as some sort of extremist and undermine her nomination. Originalism does not mean conservatives are bound only to the original intent of the framers, nor does it mean conservatives must be literalists. Good textualists understand that the Constitution is necessarily narrow, and sometimes judges must read between the lines to recognize the basic principles at work. That’s why originalists such as Scalia ruled that the freedom of speech protects more than just spoken language, and the Second Amendment protects the right to bear many kinds of arms, not just those that existed at the time of ratification.
It’s also why Democrats’ recent arguments about originalism are so ridiculous. According to liberals, textualism is an archaic doctrine that would deprive women and black Americans of their rights because, at the time of the founding, women were not allowed to vote or hold property, and black Americans were enslaved. Here are a few of the worst takes I’ve seen:
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.
“Originalism” is a cover for deeply unpopular & un-democratic policies, not some kind of serious judicial philosophy.
— Rep. Barbara Lee (@RepBarbaraLee) October 14, 2020
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.
— Dan Rather (@DanRather) October 14, 2020
Under an originalist reading of the Constitution Judge Barrett & I could not vote, own property or enjoy the full protection of the law. Senator Kamala Harris would not even be considered fully human. The Constitution is a living, breathing document meant to evolve with the times
— Jackie Speier (@RepSpeier) October 14, 2020
The Constitution didn’t even recognize me as a human being when it was first ratified. So, no, I am not a Constitutional originalist. pic.twitter.com/my0SAeRjUw
— Mayor Lori Lightfoot (@chicagosmayor) October 13, 2020
None of these characterizations are even slightly true. Originalists do not believe the Constitution is an unerring document that cannot change. The Constitution literally includes an article giving lawmakers the right to amend and/or alter it! Any amendment becomes part of the constitution and thus binds judges. Originalists, thus, do not oppose amending the constitution — they just believe changes should go through the formal amendment process instead of being imposed by the arbitrary whims of unelected judges.
When asked by Sen. Ben Sasse about how an originalist would grapple with something like the introduction of cell phone technology when interpreting the Fourth Amendment, Barrett offered a clear explanation.
She said of the U.S. Constitution, “One reason why it’s the longest lasting written constitution in the world is because it’s written at a level of generality that’s specific enough to protect rights, but general enough to be lasting so that when you’re talking about the constable banging at your door in 1791 as a search or seizure, now we can apply it, as the court did in Carpenter v. the United States, to cell phones. So the Fourth Amendment is a principle. It protects against unreasonable searches and seizures, but it doesn’t catalog the instances in which an unreasonable search or seizure could take place. So you take that principle, and then you apply it to modern technology like cell phones, or what if technological advances enable someone with Superman x-ray vision to simply see in your house, so there’s no need to knock on the door and go in. Well, I think that could still be analyzed under the Fourth Amendment.”
Textualists are much more concerned with how the Constitution is changed. Christopher Scalia put it this way: “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? Not judges but the people, through their elected representatives,” he wrote.
In other words, originalism accepts change but forbids judicial activism. Judges do not have the right to read new laws into existing ones. They do not have the right to change the meaning of existing laws to make them more favorable to a certain political ideology. Judges are supposed to be impartial arbiters, and originalism makes sure they stay that way.
Perhaps that’s why Democrats dislike originalism so much. They’d rather have a justice willing to read liberal policies into the Constitution, someone who would use his or her position to advance a certain agenda. But they don’t need the Supreme Court to do either of those things. Democrats already have the power to pass liberal policies and change existing ones — it’s called lawmaking.
