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

from The Atlantic

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.

More here.

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7 Comments

  1. I think Amy Barret’s philosophy regarding the constitution makes a lot of sense. The author of the article claims that the Air Force would be unconstitutional under Barret’s philosophy, however, I think this is a misunderstanding. Barret claims that we should maintain the philosophy and original meaning of the Constitution rather than adapt it to what some people think it should be today. Obviously, applying the qualities of the Army and Navy to the Airforce is consistent with the original intent of the constitution, so I do not think the author’s claim is valid. In an interview last month, Barret clarified her originalist philosophy by saying that “I understand it to have the meaning that it had at the time the people ratified it”. The author of this article also claims that new technologies like wiretapping would be free from the restrictions of “unreasonable search” under the originalist philosophy, however, if the original intent of the 4th amendment was to prevent search and seizure, why wouldn’t wiretapping be considered a search? It seems as though the author is creating his own unrealistically strict definition of originalism and them projecting it on Mrs. Barret.
    Amy Barret places extreme importance upon the original intent of the Framers. This does not mean she is unwilling to apply that intent to modern issues, but it may mean she reaches conclusions that people like the author of this article does not like. One legitimate issue the author has identified throughout this article is that an originalist interpretation would prevent us from applying the first amendment to corporations. In the modern age, corporations have grown to a level of influence that now rivals world governments. With this in mind, I think an originalist interpretation would end up limiting our ability to do what is morally right for American citizens and enforce the First Amendment on companies like Twitter and Facebook, which have begun to function as public utilities. Because of this, I think originalism may not be the absolute correct philosophy 100 percent of the time, however it is generally a good mindset to approach issues with.

  2. I think what Amy Coney Barrett suggested during her confirmation hearings is outright unrealistic and ridiculous. “Originalism” the concept that the Constitution should be interpreted based on the original understanding of the time it was implemented, is an unrealistic concept to apply to cases today. Times are obviously very different than when the Constitution was adopted. To apply them to cases today is simply unrealistic. To make a judgment off of what 55 men wrote almost 250 years ago does not seem logical to me. It is held that if judges do not interpret from the Constitution it would be considered “judicial lawmaking”, but this is what these judges are hired and appointed to. I do think they should still interpret and apply the constitution, but it also needs to be considered that the world and society we live in today is vastly different than how it was when the Constitution was adopted. I think by implementing originalism the Supreme Court wants to make it appear like interpreting and ruling on cases is a procedural and mechanical thing. This way people do not make claims of bias or poor judgement, because the judges can then argue back that they were simply interpreting the constitution. However, this is simply not realistic. Originalism does not consider the constant changing society we live in and our expanding views on issues. Many have also found that these individuals that practice or implement originalism, actually have a heightened sense of dishonesty when it comes to rulings. I think originalism is just an excuse for judges to put their own views and bias into cases and defend it by saying they are “interpreting the Constitution”. One point the author of this article, brought up was, “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.” I think this is very true, originalists views allow no room for growth. Growth is necessary for proper change and originalism does not make that possible. The Constitution provides necessary structure for our government and country but should not be the only consideration when making a ruling.

  3. Amy Coney Barrett has recently been appointed as a judge into the Supreme Court, and this has caused a lot of controversy, especially because of the timing. In our second TID, we discussed the topic of Barrett’s nomination, and why it was so controversial. President Trump was able to nominate and appoint a Supreme court justice just a few weeks before the election, while Barrack Obama was unable to within the last year of his presidency because it was claimed that it was too close to the election to appoint a justice. So before Barrett has even started, she is facing adversity. During her confirmation hearings, Amy Coney Barrett argued that judges should use the idea of “originalism” as a guide for their interpretations and application of the constitutional principles. Originalism is a legal philosophy that the words in documents and especially the U.S. Constitution should be interpreted as they were understood at the time they were written. I personally agree with this to a certain degree, but this ideology certainly cannot apply to all decisions made in the Supreme Court. The article actually demonstrates a great example of this when it talks about how Congress is authorized to establish and support an Army and a Navy. But in the Constitution, there is no mention of the Air Force, but does that mean it should not be supported by Congress? The Congress points out how the Constitution was made 115 years before the Wright Brothers, so this was not accounted for in the making of the Constitution. So, the idea of interpreting issues by thinking the same way the Founding Fathers thought in 1787 is just inaccurate. Our world is evolving every day, and the original way of thinking when the Constitution was made is very different to the world we live in now. On the other hand, I do understand what Barrett is trying to explain. I believe she is trying to explain that the basic rights we have been given in the Constitution are the rights that have not changed very much. These rights have not changed for centuries, so using that ideology would work well when it comes to most basic rights, yet they still are slowly changing in some ways too. All in all, it is very difficult to keep the same way of thinking from centuries ago because our world is always changing.

  4. I was drawn to this article because we had talked extensively about judge Amy Barret’s nomination and acceptance to the supreme court. There were many people that had a problem with Trump fast tracking her way onto the supreme court, causing divide amongst people. Justice Barret has taken the seat of former justice Ruth Bader Ginsburg and this came along with a lot of scrutiny. Given that Ruth was a liberal she had accomplished a lot over her career for women and the equal rights of people. However, with justice Barret being a conservative people have been worried that she will try to strip people of their rights that they have gained over the years. They worry about this because of her “originalist” view towards constitutional interpretation. An originalist will try to interpret the constitution by the literal meaning by which it is written. They try to translate what the founding fathers literally meant in their writing when reviewing the law, leaving little room for the opinions of the individual judge. Barret believes that the law should be applied exactly as written and to deviate from this would be considered “judicial lawmaking”. However, I think that interpreting the constitution word for word when addressing matters of law is a terrible way to go about this. The constitution was written back in 1787 and a lot has changed since then, so literal interpretation is bad way to go about judgement in todays word. For example, the article states that the constitution addresses an Army and a Navy, since those are the only two armed forces addressed within the author states that to an originalist the air force would be considered unconstitutional. There were not even airplanes around back then, let alone military aircrafts so this was clearly something that the founding fathers would not have thought about. Since the world is ever changing it is important that the law and interpretation of the constitution changes as well. Since 1787 technology has advanced and the rights of all citizens have been expanded. For this reason, it is important to consider societal changes when addressing matters of law. To an originalist, cases such as Roe v Wade and Brown v Board of Education should be reversed due to the deviation that their outcomes have to the literal meaning of the constitution. However, in restricting judgement to not allow outcomes to keep up with the changing times you hinder the rights of many Americans in today society. Change is required for the growth and benefit of society and to apply law today as if we were still in 1787 is very dangerous to many and would hold the US stagnant.

  5. I think section 230 is fundamental to how the Internet operates and should be protected at all costs. I would even be open to extending the first amendment to internet forums like Facebook through legislation or potentially judicial interpretation. However, I do not know the nuance of how that would legally work. I think a lot of these companies are going down slippery slopes with the responsibility that they bear. If Facebook starts to censor some content, why not censor other content? Who determines their ethical standards and truth, and should corporations have the power to decide the truth? All of these dilemmas become long and complicated but are predicated on Facebook censoring anything in the first place. That being said, “censor” can mean a lot of things to internet users. Because Facebook’s algorithm plays an active role in post-promotion, many of the same ethical issues come up; however, instead of what can they remove, its what can’t promote or what should they promote. To refuse to promote a user is to “shadow ban” them and is functionally equivalent to full on censorship. If Facebook promotes all conservative topics and no liberal ones, are they censoring the left? If the fakebook’s algorithm unknowingly promotes extremism, does it play a role in polarization? I would like to say that anyone should be able to post anything, and the algorithm can do with it what it wants. However, algorithms can reflect the programmers’ biases or have corrupt incentive structures like “maximize clicks” even at the expense of users mental health. So letting the Internet be a fre for all with humans and robots is probably a bad idea.That being said, I think that we need to tackle these ethical dilemmas for the sake of moving into the future, and that can only happen with the experimentation and freedom empowered by section 230.
    On top of section 230, other vital pieces of the Internet’s legal framework are “fair use” and “safe harbor.” Fair use is what enables creators and users to utilize copyrighted content in a transformative way. Copying is not allowed; that’s why pirating is illegal, but taking a movie and making a critique of it using some clips would be considered transformative. Fair use does not have a very tight legal definition but does have four rough standards that judges use; the purpose and character of your use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market. Fair use enables memes, artists, content creators, and everyday users to post about their favorite movies without fear of getting sued for copyrights. Safe harbor is the idea that even when someone does post a full movie to YouTube blatantly copying it, YouTube is not liable for the copyright. YouTube is obligated to remove the post at the movie producer’s request, and all social media companies have robust algorithms to detect copyright strikes proactively, however, they are still not liable for the content of their users. Section 230 has a lot more to do with censorship in the context of the ACLU than safe harbor does with its focus on copyright, but both protect internet companies from their users’ posts and enable an open and safe dialogue on the Internet.

  6. I understand the concept behind why “judicial lawmaking” should not be implemented however, I agree with the author that interpreting the Constitution is literally the job of the justices. The occurrences in 1787 are not even close to what we have now in society. The article uses the example of the air force and how it is not explicitly written in the Constitution, only because aviation did not exist back then. I think this issue is really prevalent in the discussion over gun laws because in 1787 automatic guns had not been created yet so it was not an issue in regard to the second amendment. However, now, anyone can go to the store and receive an automatic, war-like weapon. In my opinion, there is absolutely no reason why anyone would ever need this item in their house. After taking this class I understand more why it is so difficult to amend the Constitution. However, I believe amending the Constitution to better reflect society today is crucial to the development and well-being of society.

    In Amy Coney Barrett’s hearing in front of the Senate judiciary committee, she did not give straight answers to any questions. This article really enforces the idea that she does not really know what she is talking about. For example, a Supreme Court justice’s job is to interpret the Constitution. In the hearing, she stated that she will not give an opinion on a public matter of debate, especially if it is controversial. (Source: https://www.youtube.com/watch?v=wH8J477_L28) I think this clearly portrays her ideas of originalism because many of the questions she was asked did not have to do with anything written in the Constitution, however, they are extremely applicable to today. This country was founded on the principle that an entire country should not be controlled by a single entity. Back then it meant a king or an authoritarian ruler. However, the issue relevant today is originalism because this entity has been changed from a single ruler to a 233-year-old document.

  7. I would disagree with the author’s view of originalism on a number of levels. Firstly, it is a gross overstatement to infer that originalist views are nonsensical, and people like Amy Coney Barrett do not understand that times change and there are evolving aspects of society that the framers of the constitution did not foresee. Originalists interpret the Constitution using the original meaning of the text while applying it to new applications in society all the time. Take the first amendment for example. Back when the Constitution was ratified in the late 1700’s, the guarantee of protected speech applied to people talking on the streets and in newspapers. However, as times have changed and new public forums arose such as the internet, an originalist would argue that that same guarantee of protected speech applies to speech on the internet. That same sentiment applies to every article of the Constitution from an originalist’s perspective. The Constitution doesn’t speak much about the social and political issues of today, but many would argue that this was the intention of the founding fathers. To allow for growth in the ever changing landscape of ethics and politics, the Constitution leaves the resolution of those matters to elections and the amendment process. The Tenth Amendment specifically says that any issue not addressed in the Constitution should be left to the states. However, when it comes to the social and political questions of the day, many living constitutionalists would prefer to have judges dictate law and order rather than allow the people and their representatives to discuss, debate, and resolve them. And there is an inherent problem with this.

    The Constitution is the framework for the greatest, most free society that has ever existed on this planet. It is important not to further ourselves away from that framework if we want to keep our God-given rights and remain free. Unfortunately, we are living in very politically divided times where the once neutral judicial system is being used as an arm for political gain. We mustn’t allow the current state of politics to interfere with the scales of justice, and the best way to ensure that is by interpreting the Constitution in the purpose that it was intended. If the Constitution is not constant, and it changes from time to time, then someone – majority of the time, a judge – is changing it and doing so according to his or her own ideas about what the Constitution should look like. As Supreme Court justice Neil Gorsuch warned, “It may be tempting for a judge to do what he thinks best for society in the moment, to bend the law a little to an end he desires, to trade just a bit of judicial integrity for political expediency.” But some of the most regrettable legal decisions are brought about when judges chose to follow their own interpretations rather than follow the Constitution’s original meaning – everything from ruling that Congress had no power to outlaw slavery in the Territories (Scott Dred Case) to reorganizing the structure of opportunities that should be given to everyone equally by forcing outcomes (affirmative action). If we do not recognize how fragile our freedom actually is, we may lose it in the blink of an eye.

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