Originalism v. Living Constitution: The Case for Amy Coney Barrett

Updated: Oct 16

This essay is also available on YouTube and as a podcast on Anchor and Spotify.

Confirming Amy Coney Barrett is the right choice because she is a constitutional originalist.


This does not mean, as some misunderstand, that she pines away after "the way things were" when women couldn't vote and blacks were still slaves. Nor does it mean that she yearns to overturn Roe v. Wade or help Trump enact his legislative agenda.


What is Originalism?


Originalism doesn't mean those things. It doesn't pass value judgments like "abortion is good/bad", "women's suffrage is good/bad", or "the death penalty is good/bad."


Originalists believe that value judgments are the purview of the legislature where "we the people" through our representatives, debate, argue, and finally come to a consensus on the moral values we want our laws to embody. When a case comes before an originalist judge all she seeks to determine is, "what did the writers of the law mean when they wrote this law?" That is, what is the last known, democratically decided will-of-the-people? That's all.


Originalist judges leave their own values, religious beliefs, preferences, etc. out of the decision entirely. They judge the law. They DON'T make value judgments of right and wrong, per se. That can seem counter-intuitive, but that's what we mean when we say "justice is blind". It is impartial and objective, not subjective. Friends are treated no differently than strangers, and rich people no different than poor.


As such, originalism is fundamentally democratic. It holds that a Supreme Court justice's only responsibility is to determine the will of the people as most recently enshrined into law through their duly elected representatives. If our will has changed, let us enshrine those changes in law, state-by-state, or if necessary, through the amendment process.


Originalism intrinsically trusts that the people can pass their own laws and must be entrusted to do so if democracy is to thrive. Again, contrary to common misconception, originalism does not take a position on the morality of cases that come before the court: e.g. abortion, marriage equality, capital punishment, gun rights, corporate campaign donations, flag-burning, etc. Originalism's only concern is what did the people say?


What is the "Living Constitution" Approach?


The alternative to originalism is the "evolutionary" or "living constitution" approach, sometimes called the "values-laden" approach by proponents such as Associate Justice Stephen Breyer, or "judicial activism" by its critics.


This is the idea, as Chief Justice Earl Warren, the father of the living constitution approach put it, that we "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society" (Trop v. Dulles, 1958). It holds that our understanding of the constitution must change as our society changes, but we can bypass the people and their legislative process, if necessary. We don't need to amend the constitution itself to enact that change. This approach, advocates say, prevents the "dead hand" of prior generations from controlling important contemporary issues to an extraordinary and unnecessary level of detail (McConnell, 1997).


Do Originalists Worship the Constitution?


Originalists agree that society's standards of decency do evolve. They do not say the original Constitution or Bill of Rights are immutable. Both they and living constitutionalists agree with Thomas Jefferson who wrote in a July 1816 letter to Samuel Kercheval:


"Some men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment. ...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."


Where originalists and evolutionists differ, however, was well captured by Douglas Linder, Stanford graduate, and Professor of Law at UMKC who stated:


"We are free to touch the Constitution, to shape it to fit current needs, even, if necessary, to tear it up and write a new one. What we are not free to do is to ignore it."


Originalists, therefore, don't care if an amendment is 200 years old or 20 days old. Their allegiance is to the law, the democratically enshrined will of the people. The question posed by originalists then is not if constitutional law should change, but who should change it.


Who Decides?


Originalists are not against "evolving standards of decency." The question is one of jurisdiction - who decides what those evolving standards are? Holders of the originalist view do not believe judges are put in place to judge right and wrong, which is subjective. Rather, they are entrusted to judge the law, which legislators attempt to make objective, based on the will of the people, which, we all hope is based on a solid moral foundation.


When a question of right and wrong comes before the court that is not already explicitly answered in the Constitution and its amendments, the proper course is to remand such decisions back to the people through their democratically elected representatives, thus preserving the democratic nature of our society.


The alternative is for the justices, five of them, to subjectively decide what is right or wrong and impose that will on everyone in the country. In effect, the ideals of democratic rule and rule of law are thwarted and their strength diminished. The populace focuses their attention on courting and convincing politicians, rather than their fellow citizens.


Making Legislators of Our Judiciary


Justice Barrett has been called "conservative", even "ultra-conservative." These terms do not refer to her political party affiliation or mean that she will actively seek to move the court to the right.


Conservatism in the judicial sense means that one seeks to interpret or understand, i.e. conserve, the original intent of the law as currently enacted, and not take it upon oneself to interpret it differently, which is in effect an act of legislation.


The "living constitution" approach makes legislators of our judiciary. Instead of remanding decisions back to the people, these justices take it upon themselves to modify the law. The power shift that this represents is enormous and is the reason why Supreme Court nominations are now so contentious. Of course they are. We now have five lawmakers instead of 435 - or thousands if we include state, county, and city lawmakers who are now removed from the process entirely. Thus, the "living constitution" approach is fundamentally undemocratic. It is a concentration of power, from many hands to very few. It is a breach of one of the separations of power.


Once, when asked about this principle, Associate Justice Antonin Scalia said (paraphrased):


"The people know values. The people should decide. I was appointed to the court because I'm a good lawyer. I don't know any better than you do whether there ought to be a death penalty or there ought to be a right to an abortion. But I can read the text and see what was meant when it was adopted.


"If judges are implementers of good values, they should be elected or you should select them based on their values, which is actually what we now see in the confirmation process. "The people are not fools. They recognize that we are changing the meaning of the constitution from decade to decade. Now it's not so important whether this nominee is a good lawyer, a good person, or has a modicum of judicial temperament.


"Now, the most important thing is I want to put someone on the court who has my values - who wants to allow or prevent abortion, allow or prevent capital punishment. You convert what was supposed to be a lawyerly institution into a political institution."


If we the people believe something very strongly, let us advocate amongst ourselves, convince our fellow citizens and seek legislation, including amendments, that embody those values. Yes, it is time-consuming, burdensome, and frustrating. It is democracy. Involvement and advocacy are the price of freedom.


Citizens on both the right and the left should advocate for constitutional originalism. It protects us all. If we are worried that an originalist might encroach upon our sacred cows perhaps we should question the method we used to force that sacred cow upon our fellow citizens in the first place. If we believe our position is so correct that it warrants forcing it on others outside of the amendment process, we have entered the territory of dogma.


What About All the Good Done by Activist Courts?


None of this is to say that the living constitution approach can't arrive at "good" decisions. On the contrary. Just like any ruler or ruling body, be it a king, czar, parliament, or despot, those in power can always "do good."


Indeed, originalism can result in verdicts that seem "bad" to some citizens, like not outlawing flag burning or pornography.


Living constitution proponents may often make "correct" judgments between right and wrong. But they always take the wrong route to get there. They placate the present and damage the future.


It isn't the role of the Supreme Court to "do good" or "do bad" or enforce "right and wrong." Their sole role is to arbitrate the law. The people through their representatives pass the laws that embody right and wrong. It is dangerous to place that much power in the hands of one or a few unelected persons. Instead, we require an amendment process which albeit slower, has the legitimacy that deliberation and ratification would provide.


Judicial Activism and the Seduction of Power


On several occasions, Justice Scalia expressed the concern that the evolutionary or activist theory is extremely seductive to those in the law profession, especially Supreme Court justices, lawyers, and law professors.


The living constitution approach grants them enormous power and significantly enhances the importance, power, and prestige of the judiciary in society. Their opinions, writings, and speeches are in much greater demand.


Justice Barrett has compared this seductive power to the siren song Odysseus is warned of. The mast of his ship is constitutional law and the ties that bind him are originalism.


It is understandable and expected that a Justice should be tempted to supersede her role as an arbiter of the law and attempt instead to be the arbiter of justice itself. How wonderful to be able to right wrongs from the bench! How wonderful to be lauded by your contemporaries as a heroine of social justice!


But to do so is to take upon oneself the role of the legislator, enshrining into law one's own opinion of the way things ought to be or one's perception of society's values, bypassing the legislatively enacted will of the people and placing limitations on democracy. Judicial activism has at least five effects that damage and endanger society:

  1. power is concentrated in the hands of the very few

  2. laws lack the legitimacy that would have been gained through the crucible of the democratic legislative process

  3. laws can be made quickly - and changed quickly by a future court, resulting in anxiety and uncertainty among the people because the law is volatile

  4. agitation and dismay whenever a judge is to be nominated or confirmed

  5. the people feel coerced, rather than convinced, potentially stagnating or reversing the democratic tides of changing morals

Abortion is the classic example that illustrates these effects. Even Justice Ruth Bader Ginsburg lamented that Roe v. Wade stopped the democratic momentum that abortion-rights advocates had and gave the right-to-life movement a "great organizing tool" in what they viewed as a "most undemocratic decision made by nine justices whom nobody elected to make decisions for the country."


While falling short of advocating that such a question should be left entirely to the legislative (democratic) process - consistent with her living constitution position - she did express that "it would have been healthy" to have both the judiciary and legislature involved in the incremental back-and-forth dialog of "change and what is good for society", much like the two were indeed involved in the question of no-fault divorce where within ten years every state in the nation had some form of no-fault protection. She said, "that would have been my ideal picture of how this issue would have gotten resolved instead of having the Supreme Court as the single decision-maker."


Who Then Protects Minorities?


Proponents of a living constitution viewpoint argue that the justices can use their power to protect minorities from the majority.


Antonin Scalia agreed that the court has a role to play in protecting minorities, but not by legislating from the bench. The court's role in protecting minorities is in striking down lower laws that contradict the protection of minorities that exist in constitutional law.


For example, in Yick Wo v. Hopkins, 118 U.S. 356, the Supreme Court struck down a San Francisco law (the majority) that unfairly discriminated against Chinese laundromat owners (the minority), because it infringed on the 14th amendment.


The Court cannot invent rights. That is the role of the legislature.


In truth, it is the role of the majority to protect the minority. The majority, by enacting the Bill of Rights and subsequent amendments, are in reality placing limitations on what they and future majorities can do to minorities.


Rights related to speech, religion, assembly, self-defense, press, protest, due process, women's suffrage, etc. are limitations the majority places upon itself with respect to the rest of the country. When we say that Congress shall make no law... what we are really saying is the majority shall make no law.


By legislating from the bench, the Supreme Court denies the majority the legitimacy this act of self-restriction would give. This role of the majority is perhaps one of the things John Adams had in mind when he said, "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other" (Adams, 1798). Just as Justices must not apply to natural law (values) when hearing cases, the majority must adhere to natural law, the law of nature and nature's God, to know what restrictions to place upon itself.


Endangering the Ship of State


The originalist view of a Justice as an arbiter of the law and not a law-giver is not only an important check on the executive and legislative branches of government but on the justices themselves. Combined with the many other restraints on power designed into our system of government, these checks as I've said elsewhere create an American ship of state designed like the honeycombed bulwarks of a ship of war.


Vertical and horizontal powers, checks and balances, auxiliary precautions, and other devices act like watertight doors that are put in place and kept closed to curb, channel, and isolate power so that overreach or corruption in one area would be prevented from spreading long enough for corrections to be made.


Former Associate Supreme Court Justice, Louis Brandeis, coined the term "laboratories of democracy" to communicate this idea - that change should happen locally where others can observe and adapt as they see fit.


The adoption of the evolutionary approach by Supreme Court justices opens one of these watertight doors. Instead of remaining impartial and apolitical, nominations are now highly contested, even panic-inducing, as we're already seeing with Justice Barrett.


Among my liberal friends, I see dismayed cries that "this woman is frightening", "we're screwed", and "we're f**ked." Leading leftists are wailing that Barrett will "strip", "gut", and "destroy" cherished progressive rights enacted by prior activist judges. They aren't saying this because they think she's a bad lawyer or her credentials are in question or lacks judicial temperament - traditionally the criteria for a nominee. They're saying this because they think her values on social policies differ from theirs and she's up for nomination in the Supreme Court where justices are allowed to introduce their values in decision-making, under the living constitution view.


They would have nothing to fear had they been advocates of originalism and the amendment process all along. Enshrined in amendment law, their values would be beyond the reach of the Supreme Court. The battle of values belongs in the election of the legislature, not the appointment of the judiciary. They are meant to be impartial and originalism provides that.


How Did This Happen?


The living constitution viewpoint is consistent with the progressive approach to governance that has increasingly characterized and polarized our politics over the past 100 years. In an attempt to solve society's problems quickly and centrally, the liberal left has advocated successfully for the concentration of power at the federal level. The conservative right, while making occasional lip service objections to these changes, has accepted them as their own with an emphasis on quasi-imperialism and supporting the military-industrial complex. Accumulation of power and debt occurs under both parties.


This centralization is the equivalent to the opening of the watertight doors of a ship. Damage or corruption flows more freely. Elections matter much more than they should. Citizens are estranged from one another because it's not your fellow citizen you need to convince to evince change.


And, we risk the tyranny of the majority. Associate Justice Antonin Scalia said it this way:


"The American people have been converted to belief in The Living Constitution, a 'morphing' document that means, from age to age, what it ought to mean. And with that conversion has inevitably come the new phenomenon of selecting and confirming federal judges, at all levels, on the basis of their views regarding a whole series of proposals for constitutional evolution. If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against - the majority. By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all" (Scalia, 1995).


2016 v. 2020


Though Justice Barrett is not at fault for being nominated, I'll briefly address the circumstances of her nomination since they are so contested.


What is not contested is that the President has the duty to put forward nominations and the Senate is to provide "advice and consent". What is contested is that the Senate failed to do so in 2016 when President Obama nominated Merrick Garland and the Senate refusing to hold hearings. At the time, Senate majority leaders argued that the American people should have an opportunity to weigh in via the elections that fall.


Now, four years later, Senate majority leaders suddenly argue that the American people don't need to weigh in and that the Senate should confirm the nominee as quickly as possible.


I can understand why so many on the left are bitter about the difference in the way the GOP is responding in 2020 v 2016. I don't have any illusions that our politicians are paragons of virtue and above partisan politics.


However, it might be helpful to understand that the war over Supreme Court nominations began not four years ago, but 35 years ago.


Prior to 1987, Supreme Court nominations were pretty universally confirmed as long as they were reasonable picks. Very little contention.


In 1987, Democrats led the now-infamous character assassination of Robert Bork, Ronald Reagan's nomination to the high court. As Chairman of the Judiciary Committee, Senator Joe Biden presided over Bork's hearing and cited Bork's strong originalism as a reason for his opposition to the nominee. In 2001, President George W. Bush nominated Latino immigrant, Miguel Estrada, who had a unanimous "well-qualified" rating from the American Bar Association to the U.S. Court of Appeals for the D.C. Circuit. Democrats, fearful that an attractive candidate like Estrada might one day be nominated to the Supreme Court, kept him in limbo for over two years, including a six-month filibuster, the first of any court of appeals nominee and the first that ever prevented a judicial nominee from joining a court. All this in spite of Estrada enjoying majority support within the senate. Estrada, finally having had enough, withdrew his name from consideration.


In 2013, Democratic Senator Harry Reid used the "nuclear option" to eliminate the 60-vote rule on executive branch nominations and federal judicial appointments. Within a few years , Republican Senator Mitch McConnel retaliated, extending the nuclear option to Supreme Court nominations as well.


Fast forward to 2016 when the Senate exercised their separation-of-powers right to postpone their "advice and consent" role until after that year's election. Obama nominated Garland in mid-March. There was plenty of time to hold hearings on the nomination, but the gloves had long since come off. The tradition of political hardball when it comes to judicial confirmations was well established and it was started by the Democrats. And they started it out of fear that an originalist judge like Bork would undo prior "living constitution" decisions made by the court. A tangled web we indeed have woven.


We have centralized far too much power at the federal level, resulting in an all-or-nothing power tug-of-war, on constant replay. Unless we fix that we're just going to see increasingly bitter division and contentious power plays like this one. That's one more reason that democracy deserves the likes of Justice Amy Coney Barrett. We play Russian roulette with our democracy when we open the watertight doors of power.


Recommendations:

  • Associate Justices Scalia and Breyer participated in a collegial and insightful debate of these issues available here and here.

  • Justice Barrett discusses her views on the judiciary in an address in Washington D.C., sponsored by Hillsdale College here.

  • Another insightful address by then Professor Barrett at the Jacksonville University Public Policy Institute here.


Citations:


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