The recent death of Supreme Court Justice Ruth Bader Ginsburg certainly sent massive political shockwaves throughout the country, as did President Trump’s nomination of Ginsburg’s replacement, U.S. 7th Circuit Court of Appeals Judge Amy Coney Barrett.
Barrett’s appointment has left many calling foul on the treatment of Judge Merrick Garland in 2016 and demanding there be no confirmation until after the election. This criticism overlooks the clear historical precedent of the Presidency and the Senate. When both are controlled by the same political party, they confirm Supreme Court justices during an election year.
However, that isn’t even what I want to discuss here. As I look at Amy Coney Barrett and whether she should sit on the Supreme Court, I want to block out all of the political and partisan arguments and instead focus on the most important question: How will she interpret the Constitution as a Justice on the Supreme Court?
Fortunately, during her Senate confirmation hearing she was very open about her judicial philosophy being “originalism.” As she explained, “[Originalism] means that I interpret the Constitution as a law, and 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 is not up to me to update it or infuse my own policy views into it.”
This statement from Barrett is spot-on in defending originalism and happens to mesh perfectly with the constitutional interpretation of the Framers of our Constitution.
James Wilson, who was one of the original Justices on the Supreme Court, a delegate to the Constitutional Convention and a founding father of our nation, wrote the following, “The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.” Thomas Jefferson would write, “On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”
Barrett’s judicial philosophy seems to be in line with at least two of our Founders. But despite Barrett having the same interpretation of the Constitution as those who created it, many have attacked the idea of originalism and the fact that Barrett supports it.
Hillary Clinton attacked the philosophy of originalism during Barrett’s confirmation hearings when she tweeted, “At the time the Constitution was ratified, women couldn’t vote, much less be judges.” However, this attack on the idea of originalism has a minor flaw. It overlooks the Amendment process of our Constitution. As a matter of fact, the U.S. Constitution has been amended 27 times, including when essential rights were expanded to include women and African Americans.
But this attack is common from people who believe in a “loose” interpretation of the Constitution, which asserts that the Constitution and its words are fluid and can change with time. They view it as a “living” document. This interpretation means that anything in the Constitution can change as society “evolves” so long as you can get the Supreme Court to sign off on it.
However, this thinking does not make good legal sense. For example, when one is reading a legal document like a person’s last will and testament, it isn’t read with the idea that maybe the individual’s words changed since they wrote the will. Rather, the will is read in the clear meaning of the words as originally written.
When someone says that the Constitution can change with time, what they want is to twist the original meaning of the document into whatever is convenient in the moment. We wouldn’t do it with a person’s will, and we shouldn’t do it with something as important as the U.S. Constitution.
So I think we’ve seen, both from our Founding Fathers and from simple logic, that “originalism” is the proper way to interpret the Constitution. If the Constitution is to change, it must be done through Article 5, which lays out the Amendment process.
Judge Barrett is well qualified and should be confirmed because she has stated that she will interpret the Constitution as it should be interpreted: through the lens of originalism.