During her confirmation hearings, Amy Coney Barrett argued that the judicial philosophy known as “originalism” should guide judges in their interpretation and application of constitutional principles. Most famously associated with the late Justice Antonin Scalia (for whom Judge Barrett clerked), this idea sounds simple and sensible: In determining what the Constitution permits, a judge must first look to the plain meaning of the text, and if that isn’t clear, then apply what was in the minds of the 55 men who wrote it in 1787. Period. Anything else is “judicial lawmaking.”
In some cases, interpreting the Constitution with an originalist lens is pretty easy; for example, the Constitution says that the president must be at least 35 years old (“35” means, well, 35), that each state has two senators (not three and not one), and that Congress is authorized to establish and support an Army and a Navy. But wait a minute. What about the Air Force? Is it mentioned in the text? Nope. Is there any ambiguity in the text? Again, no. It doesn’t say “armed forces”; it explicitly says “Army” and “Navy.” Did the Framers have in mind the Air Force 115 years before the Wright brothers? Not likely.
So is the Air Force unconstitutional, even though it clearly fails both prongs of the “originalist” test? No, a more reasonable and obvious interpretation is that the Framers intended that the country be protected and that the Air Force is a logical extension of that concept, even though it wasn’t contemplated in 1787. This isn’t judicial lawmaking; it’s judges doing what they’re hired to do.
And these are the easy cases. How about terms like due process? What does due mean? Is a process that locks you up for life without access to a lawyer “due”? How about an “unreasonable” search and seizure? Is wiretapping “unreasonable”? (We wonder what the Framers thought about wiretapping or cyber theft.) Does “freedom of speech” apply to corporations, which didn’t exist in their modern form in 1787?
To put it bluntly, the whole premise of originalism is nonsense in that it pretends to make the work of the Supreme Court look straightforward and mechanical, like “calling balls and strikes,” in Justice John Roberts’s famous phase. But defining equal protection, due process, or unreasonable is not. We need a Supreme Court to interpret the intent and appropriate application of the terms of the Constitution to particular cases (many not dreamed of by the Framers).
Originalism is an intellectual cloak drummed up (somewhat recently) to dignify a profoundly retrogressive view of the Constitution as a straitjacket on the ability of the federal government to act on behalf of the public. Its real purpose is to justify a return to the legal environment of the early 1930s, when the Court routinely struck down essential elements of the New Deal. Business regulation, Social Security, and Medicare? Not so fast. The Affordable Care Act, environmental protections, a woman’s right to choose? Forget it. And this despite the Constitution’s preamble, which states that one of its basic purposes is to “promote the general welfare.”
This does not mean that the Court should be totally unmoored from the text of the Constitution or the intent of the Framers and act as an unchecked super-legislature (with lifetime tenure to boot). Clearly, this would be inconsistent with the underlying democratic idea that the American people should be the ultimate decision makers through regular elections and the actions of their elected representatives. The Court must interpret and apply the terms of the Constitution according to their plain meaning (where there is a plain meaning) and the understanding and intent of the Framers (where there was such a thing). But it also must recognize that our understanding of our principles and values has expanded over time, and it must interpret the law in the context of that growth.
The intellectual dishonesty of many originalists is exposed by their reluctance to follow their own logic regarding certain landmark cases, now widely recognized as milestones in our national progress toward “a more perfect union.” The easiest examples are Brown v. Board of Education and Loving v. Virginia, the former concerning school integration, the latter, interracial marriage, illegal in Virginia until Loving in 1967. Both decisions explicitly fail the originalist test, yet Judge Barrett asserts they were correctly decided and endorses them as “super-precedents,” a convenient dodge that evades the troubling implications of her supposedly simple theory of constitutional interpretation.
The real problem with the originalist theory is that it allows no room for ethical, moral, or political growth. If the Framers didn’t think it, it’s not allowed.
Thomas Jefferson, who wrote the Declaration of Independence and paid close attention to the drafting of the Constitution from his official post in France, understood this danger explicitly: “I am certainly not an advocate for frequent and untried changes in laws and constitutions,” he wrote in an 1816 letter addressing what he perceived to be weaknesses in the new government, “but … laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”
The fact is that the Framers knew very well that they could not reliably look into the future and anticipate the changes that were to come—whether they be the necessity of an Air Force or the manifest unfairness of segregated schools—and therefore gave us a document that defines the structure of our government, but also accommodates advances in our understanding of the essential elements of human dignity.
The Constitution should be the sturdy vessel of our ideals and aspirations, not a derelict sailing ship locked in the ice of a world far from our own.