Amy Coney Barrett’s originalism threatens the future of civil rights

The Republican Party’s push to confirm Amy Coney Barrett’s nomination to the Supreme Court just days before the Nov. 3 presidential election succeeded, as she was confirmed in a 52-48 vote Monday night. With Mitch McConnell and other Republican senators in lockstep, Democrats were virtually powerless to stop the hypocritical power grab.

Senate Democrats, likely hoping to avoid a repeat of the contentious Brett Kavanaugh hearings—which generated backlash from conservatives—frequently opted to criticize the rushed confirmation process rather than Barrett’s qualifications. When they did question her, they often focused on her stances on specific issues such as abortion rights and the Affordable Care Act.

Those concerns are certainly valid. However, they don’t fully capture the truly concerning thing about Judge Barrett, which extends beyond her opinion on individual cases. In reality, it is her judicial philosophy of originalism that constitutes the greatest threat to the civil rights of marginalized groups. 

Originalism is a judicial philosophy which holds that the Constitution should be interpreted exactly as it would have been at the time it was ratified. In their decisions, originalists frequently cite 18th century dictionaries as evidence for how certain words in the document would have been interpreted by Americans in the 1790s. 

There are several extremely obvious problems with this method. The first is that it is often extremely difficult to actually discern the original meaning of many parts of the Constitution. In a discussion at the University of Arizona Law School, Justice Stephen Breyer was very candid about this issue. He revealed that often, “When I look at that history and say, ‘What did they really intend to do then about that?’ I haven’t a clue.”

In fact, ambiguity in the Constitution was likely the intention of the Framers. Louisiana State University law professor Ken Levy argues that “Because they used flexible, open-ended language like ‘cruel and unusual’ without explaining exactly what they meant, it seems clear that they were deliberately inviting future generations to interpret and reinterpret these words.” 

The ambiguity of the Constitution is not even the most concerning issue with the originalist philosophy. What is more troubling is its belief that the Constitution is unchanging and the values of the original ratifiers must remain unless altered by a constitutional amendment. Former Supreme Court Justice Antonin Scalia, Barrett’s mentor and fellow proponent of originalism, argued that this philosophy protects democracy by preventing unelected justices from substituting their views for those of the people. 

The problem with Scalia’s analysis is that his view of American society is a myth. The Constitution was not ratified by a democratic society, but rather one built on discrimination. In the early years of the republic, only six percent of Americans had the right to vote. Many of the Framers were slave owners and nearly all held despicable views about race and gender that most 21st-century Americans would abhor. Originalists would ignore the fact that America has evolved and favor the views of 18th-century white supremacists over those of 21st-century society.

The landmark 1954 case Brown v. Board of Education is a good example of the terrible consequences an originalist philosophy can have. As legal scholar Erwin Chemerinsky notes, “The same Congress that voted to ratify the 14th Amendment, which assures equal protection of the laws, also voted to segregate the District of Columbia public schools.” If the Supreme Court had followed an originalist philosophy, it would have been forced to rule that enforced segregation was constitutional.

Unsurprisingly, originalists have dissented in virtually every major civil rights case in recent years. In landmark cases such as United States v. Virginia, Lawrence v. Texas and Obergefell v. Hodges, originalists like Scalia were unfailingly opposed to extending rights to marginalized groups. 

Fortunately, until recently, originalism has been a fringe ideology on the court, and cases such as Obergefell were decided in favor of extending constitutional rights. However, Amy Coney Barrett’s nomination creates a critical mass of originalists on the court that could threaten the rights of countless Americans. 

Originalists often claim that theirs is the only unbiased judicial philosophy, arguing that considering anything other than the original meaning of the Constitution would bring a judge’s own opinions into play. This could not be farther from the truth. 

At best, originalism is an abdication of responsibility. It allows judges to ignore the fact that their decisions have real consequences. When stripping rights from millions of Americans, they can claim that they disagree with the result but had no choice. 

At worst, originalism is a violent and dangerous ideology which substitutes the values of a modern society for those of 18th-century slave owners. It will always lead justices to oppose civil rights, because the Framers opposed civil rights. 

As many Americans call for a more progressive and inclusive nation, originalists will likely continue to be a major roadblock to achieving reform. It is important to be aware of this threat to constitutional rights, as any Democratic administration will struggle to make progress with a Supreme Court that is unrepresentative of the views of modern society.

3 Comments

  1. Too many see the Court as simply a means to their legislative end goals/views on a “just” society. Not many want to even bother with the important question of constitutional interpretation and why we should be weary of judges becoming quasi-legislators. One only had to watch the recent confirmation hearings to see this—the end justifies the means. To some the Constitution is an afterthought, a mere roadblock, so long as the end is preferable. Originalism/textualism (words have public meaning when put to paper) is not perfect, but it seems the best alternative to what exactly? The author lays out a weak argument for whatever his preferred view is that judges should expound on interpreting the Constitution. Or maybe that is the point of it—it’s not much of a philosophy besides allowing judges to pontificate on what a “just and preferable” society ought to look like. Democratically elected legislatures, representing the public, are the arbiters of a changing society, not an unelected body of judges. Think the death penalty should be outlawed? Fine, vote for legislators to change state law. (Or amend the Constitution). But it is not up to a judge to change how “cruel and unusual” was understood by the Founders and the public in order to say, today, that the death penalty is full-stop unconstitutional in the United States because “we have ‘progressed’ beyond that.”

    • The alternative is that “cruel and unusual” means that which is considered cruel and unusual now, not that which was considered cruel and unusual in 1792. Pretty simple. Just like freedom of the press includes all of the forms of publication now, not just those printing technologies that existed in 1792. I don’t think “Anonymous reader” is doing very well at using the education that Vassar is trying to provide him.

      • Yes, that is the alternative, which I was arguing against as a matter of judicial philosophy. Except “cruel and unusual” is what exactly? Is every state legislature (representing the public) in basic agreement that the death penalty is in fact “cruel and unusual” in today’s world? Far from it. So, then, the only touchstone we can (reliably) rely upon is that when the Constitution was adopted the death penalty was an accepted form of punishment. That much is clear. So, we have two options in 2020. Either amend the Constitution to outlaw the death penalty, or, better yet, pass state laws that do away with the death penalty (if you so please). But instead, your argument would allow unelected judges the ability to decide questions better left to legislatures on the flimsy notion of agreed upon “evolved standards.” That approach is undemocratic, unless we of course think that the federal bench is the best venue for deciding what our society ought to look like.

        So, we disagree as to philosophical approach. That is fair enough. But I do agree, given my experience at Vassar, going against your approach would be considered blasphemous. But I suppose that is much more an indictment of the state of Vassar as an educational institution. Besides that, I don’t see how a proper Vassar education ought to be instilling in students a certain view on something as specific and debatable as judicial philosophy.

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