The Senate Judiciary Committee, under time pressure before an election, regrettably sidestepped an opportunity last week to explore how Amy Coney Barrett the judge, as opposed to Amy Coney Barrett the professor, interprets the law. “Originalism” covers a lot of ground, so the label tells us little. I’m an historian, not a constitutional scholar, but here are six questions that I wish Judiciary Committee members on both sides of the aisle had systematically pursued as they considered this nomination.
WASHINGTON, DC – OCTOBER 14: Supreme Court nominee Judge Amy Coney Barrett testifies before the … [+]
How does an originalist like yourself go about interpreting constitutionally enumerated rights in circumstances not contemplated at the time of ratification?
Judge Barrett identifies two principles as the core of originalism: the meaning of the constitutional text is fixed at the time of ratification, and the historical meaning of the text (the “original public meaning”) is normally authoritative. This meaning does not change with time. As Judge Barrett noted during the hearings, “it’s not up to me to update it or infuse my own policy views into it.”
This sounds straightforward, but words are slippery. No amount of historical research will resolve every ambiguity, so the researcher’s judgment matters. Imagine getting people today to agree on a clear definition of “freedom of speech” or “privacy” and you’ll see what I mean.
On top of this historical challenge comes the equally daunting one of applying words whose meanings were fixed hundreds of years ago to our modern world, a task that necessarily requires judgment. People who identify as originalists do not agree either on the historical meaning of the constitutional text or on how to apply it to present-day circumstances. The assumptions a judge brings to her task will influence, for example, how she defines “arms” in an era of nuclear weapons or the scope of “the press” in a digital age. This question tries to get at Judge Barrett’s assumptions by asking how she takes words written at one time and applies them in dramatically different circumstances.
The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Why is this amendment included in the Constitution? According to your understanding of the original public meaning, to what might the word “others” refer?
Do individuals have rights, for example a right to have children, that are not spelled out in the Constitution? If so, how would Judge Barrett decide what these rights are? Are these individual rights or civic rights? While it’s inappropriate to ask a Supreme Court nominee how she would rule on a particular case, we can explore whether, generally speaking, a nominee understands the Ninth Amendment as a check on the power of the state to curtail the people’s liberty.
“The people” is a term that recurs throughout the Constitution. What is the original public meaning of that term? To whom does it apply today?
The people of the United States, not state governments, ordained and established the Constitution. But who were “the people” at the time of ratification? What is the legal meaning or force of this term? On what authority do individuals not originally included become a part of the people? For example, who now has a constitutionally protected right to assemble peaceably and why? Who now determines who is included or excluded from “the people” and why?
Was Dred Scott v. Sandford correctly or incorrectly decided by the Supreme Court? What’s your reasoning?
This 1857 case held both that Dred Scott was an enslaved person (that is, residing in a place where slavery was outlawed did not make a person free) and that Black Americans descended from enslaved Africans, even if freed or born free, were not U.S. citizens. Nullified by the Fourteenth Amendment, the case has no legal standing now and therefore offers an opportunity to explore Judge Barrett’s reasoning process with respect to determining the “original public meaning” of the constitutional text and its later application. Before the passage of the Fourteenth Amendment, who was a citizen and how would you go about determining this?
In your Kanter dissent, you use founding-era cases as you discuss a distinction between individual rights, like the right to own a gun, and civic rights, like the right to vote. What is the “founding era”? How much of post-ratification history is relevant to determining the original public meaning of the Constitution? Given the distinction you make between individual and civic rights, how much leeway does a state today have in determining who enjoys civic rights?
Judge Barrett generally accords greater deference to individual rights (for example, the ones enumerated in the First Amendment) than to civic rights like voting that only make sense in the context of a group or community. Civic rights, she says, are subject to group “virtue exclusions” as evidenced by founding-era state laws that excluded people from voting because they belonged to a certain group. It’s possible to conclude from this dissent that, in Barrett’s view, because the right to vote can depend on how a state defines virtue, a majority can simply choose a definition of virtue that disfranchises otherwise unprotected minority populations. By asking her directly about this case, on which she has already ruled, we might learn more about her approach.
In a 2016 article on congressional originalism, you suggest that a “super precedent” is unlikely to come before the Court in part because a litigant with standing would have to raise the issue and “given that the overruling of a super precedent is unthinkable,” a litigant is unlikely to pursue this. What’s the definition of “unthinkable” here?
If I understand Judge Barrett’s logic, a super precedent is only a super precedent as long as an overwhelming majority of the people take it for granted. Something is unthinkable until people think it. Since Judge Barrett plays down the importance of stare decisis, perhaps even a super precedent (take Brown v. Board of Education or Griswold v. Connecticut) could be overturned if enough people think it can and should be.
If such a case came before her and she found the reigning decision flawed, Judge Barrett might then consider (following past Court practice) how much damage a reversal would cause. Here, her judgment—how she evaluates harm to people—not the constitutional text, might determine how she chose to rule.
I’m no expert on originalism, and from a distance it seems like a potentially reasonable approach to reading a law. I am, however, an historian. My questions come from the way some originalists downplay the role of individual judgment and perspective, as if research could make the Constitution transparent and its application clear.
Determining the original public meaning of a text and then applying that text to our era requires a colossal leap of individual judgment, one in which a person’s values and assumptions and perspective come into play every inch of the way. Judge Barrett is clearly an exceptional person with an impressive academic record. I’d love her as a colleague. But the Supreme Court is not an academic department and her judicial record is short. The Senate Judiciary Committee and all Americans have a right to understand more fully how Judge Barrett reasons from the bench before we entrust to her the interpretation of this country’s most cherished and consequential document.
