Op-Ed: Judge Barrett is an originalist. Should we be afraid?
Originalism, the judicial philosophy of Supreme Court nominee Amy Coney Barrett, and her mentor, the late Justice Antonin Scalia, is once again the subject of intense interest and public debate.
Originalists believe that judges are bound by the constitutional text and that its words should be read as the public would have understood them at the time each provision was written.
Why would anyone object to this common-sense idea? One worry is that originalist justices will overrule modern decisions that Americans hold dear.
One such case is Brown vs. Board of Education, the landmark Supreme Court case that struck down racial segregation. But originalism not only supports the ruling in Brown; an originalist Supreme Court would never have propagated the separate but equal doctrine in the first place.
The Brown decision was necessary because the court in 1896 had virtually nullified the Privileges or Immunities Clause of the 14th Amendment. That clause made it unconstitutional for states to deny basic rights to any citizen of the United States. Had the court in Plessy vs. Ferguson given that clause its original meaning, it would have struck down a Louisiana Jim Crow law and never created the pernicious doctrine of “separate but equal.”
Another worry is based on the false assumption that originalists want the world to stay the same as it was in 1787 and that they would ignore the words of the Constitution, asking instead, “What would James Madison do?”
This misunderstanding leads to truly silly arguments. Is the 2nd Amendment restricted to muskets? No, because the word “arms” includes all weapons that can be carried, including modern rifles and pistols. Would the 4th Amendment prohibition on “unreasonable searches” allow the government to send in drones and robots to search your home? No, the word “search” includes robot searches, drone searches, and other kinds of searches we cannot yet imagine.
Originalists believe that judges are bound by the constitutional text, which can be applied to contemporary circumstances in ways that James Madison could not have foreseen.
But this is not to say that originalism requires every policy outcome favored by liberals. On most great questions of policy, the constitutional text is silent. The Constitution creates a framework for democratic politics, but it is up to Congress and state legislatures to enact statutes. The Constitution does not enact the Green New Deal, but it does allow Congress to spend “for the general welfare.” Originalist justices won’t order Congress to enact a carbon tax, but they would uphold such a tax.
What about Roe vs. Wade, which found a constitutional right to abortion within certain limits? One thing is sure: Principled originalists would not vote to affirm or reverse Roe on the basis of their personal moral beliefs. But we should not dance around the fact that Justice Harry A. Blackmun’s majority opinion in Roe did not even make an attempt to show that the right is required by constitutional text.
Ironically, it is not originalists but conservatives who would vote to overrule Roe on the basis of their personal beliefs. For originalists who are dedicated to the rule of law, things are not so simple. All of the originalist justices support the doctrine of precedent as an important factor, even in constitutional cases. Scalia once called himself a faint-hearted originalist, in part because he deferred to longstanding precedent on many topics, including a long line of non-originalist decisions about Congress’ power under the Commerce Clause.
Barrett’s views on precedent are moderate. For example, in her 2013 article, “Precedent and Jurisprudential Disagreement,” she emphasized the role of precedent in mediating disagreements among the justices about constitutional methodology: “Absent a presumption in favor of keeping precedent, and absent the system of written opinions on which stare decisis depends, new majorities could brush away a prior decision without explanation.” And in a 2016 article, “Congressional Originalism,” Barrett wrote that the Supreme Court’s control over which cases it chooses to hear allows it to “let sleeping dogs lie.” Not every precedent that is wrong needs to be overruled.
In her confirmation hearing Tuesday, Barrett did say that Roe is not a “super-precedent,” a kind of case so widely accepted that it could never be overruled. This opinion is squarely in the mainstream of American jurisprudence. Importantly, she has never endorsed the radical idea that originalism should give precedent no weight at all.
Many Americans may be concerned about Obergefell vs. Hodges, which found a constitutional right to marry for same-sex couples, but did not employ originalist reasoning. Obergefell reflected a change in social norms that seems likely to stick, even in red states. More recently, Justice Neil Gorsuch’s majority opinion in Bostock vs. Clayton County ruled that the text of Title VII of the Civil Rights Act of 1964 prohibits discrimination based on a person’s sex and therefore protects employees from discrimination because of their sexual orientation or gender identity. That case shows that textualist methodology, which is at the core of originalism, can yield progressive or conservative results, depending on what the text says.
For originalist judges, this approach can lead to results that they don’t like and certainly ones not anticipated by the framers of the Constitution.
Of course, this does not mean that Barrett’s supporters and opponents can know what she would do in any particular case. It seems unlikely that the Supreme Court will ever reconsider Obergefell, which is part of a social transformation that cannot feasibly be undone, but it does seem likely that Roe and abortion rights will come before the court again. What is important is that the evidence that we have about Barrett suggests that if these cases were to come before her as a justice, she would be guided by her best understanding of the law, including both the constitutional text and precedent.
Two hundred and forty years ago John Adams wrote of the importance of “a government of laws and not of men.” This ideal is not some musty platitude whose time has passed. If the events of recent years show anything, it is that we should fear the arbitrary rule of individuals, who do what they want and not what the law requires. The core of originalism is the rule of law. And that is not something we should fear.
Lawrence B. Solum is William L. Matheson and Robert M. Morgenthau Distinguished Professor of Law at the University of Virginia School of Law. He has written extensively about constitutional originalism.
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