Amy Coney Barrett's Judicial Philosophy Doesn't Hold Up to Scrutiny (The Atlantic)

[Nevilledog]

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Senator Angus King
@SenAngusKing
In @TheAtlantic, @HC_Richardson and I lay out the core flaws of the originalism argument — which fundamentally misconstrues the Framers’ intent for the Constitution and would threaten generations of progress if fully embraced.

Amy Coney Barrett’s Judicial Philosophy Doesn’t Hold Up to Scrutiny
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.
theatlantic.com

https://www.theatlantic.com/ideas/archive/2020/10/originalism-barrett/616844/

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).

*snip*

[TreasonousBastard]

1. An excellent article, but it still avoids mentioning a few small things...

The point of a democracy is the ability to discuss (OK, fight like hell) an issue and come to compromises after listening to all sides. The originalists represent a side and really should get their say. Otherwise it's all a sham.

This leads us to the idea that the originalists, like so many other distasteful viewpoints, do give us things to discuss. They put a brake on some of the crazier ideas that might be out there.

This is not to say that Nazis or Stalinists have a seat at the table. Extremists are till extremists.

[Hermit-The-Prog]

2. Originalists are extremists

The extreme view that the Constitution is a dead document to be interpreted as its original authors intended interferes with evolving society and democracy.

[TreasonousBastard]

3. You're drawing a line where there isn't any. "Intent" is a legal and logical term. Of course the...

Constitution doesn't talk about nuclear power, or even electricity, but within the arguments of interpretation of what is there we can argue over the intent of the authors. After all, these are the guys who defined the country.

How much weight should we put on their philosophies of individual freedom? States rights? The right of a business to profit? Property rights?

These aren't merely questions of particular lawsuits, but of the essence of our nation.

[Hermit-The-Prog]

5. It's an extreme view.

[dsc]

4. You don't have to go back to Brown and Loving to find cases of inconsistency

just look at Shelby. That was the voting rights case.

Here is the text of the 15th Amendment.

Section 1
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2
The Congress shall have the power to enforce this article by appropriate legislation.

end of quote.

The VRA was authorized and reauthorized 6 times between 1965 and 2006 (in 2006 it passed the Senate unanimously and the House with over 95% of the vote).

Now originalists lecture us endlessly about a) the original meaning and intentions of the authors and b) judicial modestly, letting the political branches solve political disputes. Yet, the originalists overturned an entire section of the VRA on a ridiculous argument.

The original authors of that amendment were clearly opposed to the Court having any role in this at all, they literally fought a war over exactly that. As to judicial modesty, this was an over 40 year old law that was authorized and reauthorized by huge margins over and over and over and over and over and over again. Yet the court said f you to all of that.

[TreasonousBastard]

6. Methinks you are perhaps confusing originalists, who prefer not to act, with...

stone age conservatives who are using "original intent" as a convenient excuse to wreak their own version of havoc.

The two do often overlap.

[lettucebe]

7. I say if she's so intent on pushing originalism then she cannot be a justice

Women could not vote, so they certainly could not serve as a Supreme Court Justice. Her own logic means she must get lost.

[Hortensis]

8. The constitution can be printed on a few pages which are set

on a thin cardboard cover and stapled together in the center -- and still have ALL the pages to the right of the central staples blank. The one I had for years used the other half for explanations of the text in front.

Now, remember that this was written by ATTORNEYS as principles and structure for an experiment in national governance of a sort never seen before. It's all you need to see to realize what a phony political construct "originalism" and textualism are in the hands of hard-core conservative activists. The framers knew this framework for a nation would have to be interpreted in the context of the various cultures, geographic locations, and temporal settings of application. And they spent years musing on and consulting each other about what it should say and why, and what it should not and why.

A living constitution.