Honorable Amy Coney Barrett debunks the myth surrounding constitutional originalism
About a year ago, the Honorable Amy Coney Barrett made headlines during her confirmation hearing for the Seventh Circuit Court of Appeals. This past July, Judge Barrett graced the headlines of major news outlets across the country again as one of President Trump’s four finalists for the nomination to fill the seat of former Supreme Court Justice Anthony Kennedy.
Last Wednesday evening Judge Barrett addressed a full auditorium in the DeBartolo Performing Arts Center on the judicial philosophy of originalism. Barrett’s talk was entitled, “What would James Madison do?”, a nod to the common misconception of originalism: that it requires judges to speculate as to what the founding fathers would do were they confronted with a contemporary constitutional question.
Over the course of her talk, Barrett would highlight the contemporary cousin of originalism, “original public meaning,” but began with a helpful metaphor which illustrates the case for an original interpretation of the Constitution, broadly. She recounted the famous story of Odysseus and the Sirens. Odysseus, having been warned that no man could resist the sound of the Sirens, asked his crew to tie him to the mast of his ship, so that he would be able to hear the beautiful Siren song as they passed, but would not be lured to his death. Odysseus instructed his crew not to untie him no matter how hard he pleaded. Sure enough, as they sailed past the Sirens, Odysseus thrashed and begged, but he was saved from the bewitching song by his loyal and obedient crew.
Judge Barrett explained that this is how the Constitution functions in our democracy. “The Constitution represents the fundamental commitments we’ve made as a society,” she said. According to Barrett the Constitution “singles out certain non-negotiable items that we are not willing to change.” “There will be times when we as a democracy…will be tempted to be untrue to our fundamental commitments. The Constitution is our bulwark against that… We say, like Odysseus resisting the sirens, that even when we face that temptation, that we will not violate our fundamental commitment.”
Just as Odysseus’s crew restrained him by tying him to the mast, judges, by reviewing the output of our political branches, provide the mechanism by which we adhere to our fundamental commitments.
Judge Barrett went on to address the history of originalism, a probable source of much of the confusion surrounding the theory. Originalism as a self-conscious theory only arose in the 1980’s in response to the Burger and Warren courts, who had adopted the theory of “living constitutionalism”, as what Judge Barrett called a “sophisticated justification” for non-textually compelled decisions such as Miranda v. Arizona and Roe v. Wade.
The theory of originalism initially referred to “original intent” originalism, championed by Judge Robert Bork. Taking issue with the Burger and Warren courts, Bork famously said, “We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own.”
Though Bork’s “original intent” quickly gained steam, it had some significant flaws. This theory, Barrett explained, could, in fact, be summed up with the phrase, “what would James Madison do?” the discerning of which, she said, was “kind of an impossible task.”
For one, Barrett pointed out that there were a lot of Framers and they certainly did not share one intent. Furthermore, there is the question of democratic legitimacy. Why should we be bound by what the founders thought? We are bound by the Constitution because it was ratified through the democratic process and became law. Surely, the same cannot be expected for the private musings of the founding fathers. And finally, the founders are a group of dead white men. Why should the dead hand of the past bind us?
Judge Barrett acknowledged Justice Scalia as the single most important individual in the shift of originalism from “original intent” to the contemporary theory subscribed to by the likes of Judge Brett Kavanagh, “original public meaning.”
Rather than focusing on the framer’s minds, Barrett described that original public meaning focuses on “what informed observers at the time would have understood the text [of the Constitution] to mean.” This, she explained, is the difference between examining a text from the perspective of the writer, and from the perspective of the reader.
“Original public meaning” originalists use tools like the Federalist and Anti-federalist Papers, the ratification debates, contemporary dictionaries, contemporary judicial decisions and contemporary legislation to parse out the original meaning of the Constitution as understood by its contemporaries.
This new brand of originalism addresses many of the critiques of original intent. For example, the problem of many minds and the problem of democratic legitimacy are both resolved. In fact, it turns the question of democratic legitimacy on its head.
“Law has democratic legitimacy as a matter of popular sovereignty because it was ratified by a particular group of people at that time that made it law,” explained Barrett, “if judges give it different meaning now than it had when it was enacted, it’s not respecting the law that was made.”
Several criticisms of originalism still bear on the “original public meaning” theory. First and foremost among this critiques is that original public meaning still subjects us to the “dead hand of the past”. Barrett noted that while this is one of the most frequently repeated objections, it is not a particularly problematic one. She explained that no one thinks laws should be stricken off of the books when the people who passed them die; “In a continuous society we accept the ongoing validity of laws until we change them. What makes them democratically legitimate is that we always have the power to do that.”
Another persistent criticism is what Barrett called the “law office history objection,” that judges are not historians and are thereby unqualified to interpret the public meaning of historical texts. Barrett explained that the alternative—the role of a judge according to those who subscribe to “living constitutionalism”—is relying on judges to interpret contemporary norms and cultural mores — something else judges are not trained in. At least, she continued, interpreting legal texts of the past and engaging in linguistic analysis is closely related to the contemporary study of the law.
Finally, Barrett addressed the objection that originalism is “inflexible”, for example, the founders could not have predicted the advances that our society has made in technology. To this objection, Judge Barrett responded that “Nobody would say that original public meaning gives you the answer to every question. Original public meaning often gives you principles.” As an example, she cited the 4th Amendment, the right of the people against unreasonable search and seizures. The original public meaning would have understood an unreasonable search or seizure to be an instance of trespassing on the private property of another. This principle can be and is applied to new technologies such as searches by GPS, infrared technology, and wiretaps. There is also flexibility built into our system through the legislative branch. Most of the problems that arise as a result of society’s progress are addressed by legislation.
In conclusion, Amy revisited the metaphor from the beginning of her talk, reminding us that the Constitution is meant to be inflexible. Just as Odysseus’s crew restrained him to his certain displeasure as the ship sailed out of reach of the Siren’s voices, so too does our Constitution, holding us back from the temporal desire to stray from our fundamental commitments. “If it seems inflexible,” Barrett reiterated, “it’s doing its job.”
Keenan White is a senior studying political science with minors in history and Constitutional Studies. She is a staunch, albeit hypocritical, advocate of living on campus all four years. You can contact her at email@example.com.