Given the ongoing social media freakout on the Left over Supreme Court nominee Judge Amy Coney Barrett claiming to be an “originalist,” one would think no one has ever heard the term before this week. Barrett explained her concept of originalism to the Senate Judiciary Committee on Tuesday: “That means that I interpret the Constitution as a law. … I understand it to have the meaning that it had at the time people ratified it. That meaning doesn’t change over time, and it’s not up to me to update it or infuse my policy views into it.”
That’s when former Secretary of State Hillary Clinton weighed in.
Clinton tweeted, “At the time the Constitution was ratified, women couldn’t vote, much less be judges.”
At the time the Constitution was ratified, women couldn’t vote, much less be judges. https://t.co/B0oxTT2nzt
— Hillary Clinton (@HillaryClinton) October 14, 2020
So there you have it. Barrett is a knuckle-dragging reactionary hell-bent on erasing any of the social progress her gender has made over the last two-plus centuries.
Does anyone really believe this? Does Clinton even believe this?
To second Barrett’s interpretation, in a broad and conservative sense, “originalism” means interpreting the Constitution according to the intended meaning of the text. It does not mean going back to the injustices and atrocities that existed in 1787.
Most legal progress for minorities, women, gay people, and transgender people came from amending the Constitution, or the court determining that certain individuals were being denied their constitutional rights according to the original meaning of our nation’s founding charter. Despite much of the Left seemingly not having any historical memory before eight seconds ago, this concept is not new, alien, or radical.
When President Barack Obama nominated Judge Elena Kagan to the Supreme Court a decade ago, she declared in her nomination hearings, “we are all originalists now.”
Did this mean she shared the same judicial philosophy as the late Justice Antonin Scalia or even Barrett? No. It was recognition that since the 1980s, originalism has played a significant role in decisions made by the nation’s highest court.
As the Chicago Tribune’s William Baude noted after Justice Antonin Scalia died in 2016: “Over the past three decades there has been a sea change in constitutional understanding. Judges still disagree heatedly about how to interpret the Constitution, but it is now common ground that the original meaning is the starting point.” Baude added, “The original meaning frames the terms of constitutional disagreement.”
This appeared to be the proper court parameters according to the late Justice Ruth Bader Ginsburg when she claimed to be an “originalist too” in 2011.
Challenging Rutgers University Professor Earl Maltz during a panel at the school, Ginsburg said, according to ABC News, “I have a different originalist view.”
“I count myself as an originalist too, but in a quite different way from the professor,” Ginsburg added.
To my knowledge, no one accused Ginsburg at the time of wanting to strip women of the right to vote or to become judges, particularly given that she was arguing in favor of women’s equality and dissecting her disagreements with Scalia over the equal protection clause.
Still, Ginsburg said her view was originalist, however differently she defined that term from other self-described originalists.
Judge Barett’s claim to the “originalist” label is not radical or even unique. Her originalism isn’t even original. This won’t prevent the continued flailing of those trying to paint her judicial philosophy as something sinister in their desperate, and failing, attempts to tarnish this impeccable court nominee.
Jack Hunter (@jackhunter74) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is the former political editor of Rare.us and co-authored the 2011 book The Tea Party Goes to Washington with Sen. Rand Paul.
