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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25 Comments

  1. In my opinion, textualism is an entirely valid approach to interpreting law. Looking at the plain meaning of the words written in legislation can be an acceptable way of parsing the meaning and Constitutionality of laws. It is worth noting, however, that legislative intent is also an important aspect of interpreting the law. This is the main source of judicial conflict when it comes to the constitutionality of the Affordable Care Act. According to newly appointed Associate Justice Barrett’s current opinion, the text of the Affordable Care Act is not constitutional because the individual mandate does not fall under Congress’s commerce powers. However, Justice Roberts found, essentially on the basis of legislative intent, that the mandate acted as a tax, which it within Congress’s purview.

    While textualism versus intent will always be a hotly debated topic on the Supreme Court, I do not feel that originalism is equally as valid as living constitutionalism. Originalism is the idea that the framework of the Constitution and its amendments are all we need to govern and to interpret constitutionality of laws and executive orders. If a government power, a right, or a protection is not expressly stated in the Constitution, then said powers, rights, or protections are not constitutional. This article above points out how ludicrous this suggestion is, considering the Air Force is not expressly mentioned in the Constitution as a branch separate from the Army or the Navy. This is because the aircraft was not invented for the majority of our country’s existence.

    I would argue that the primary division of judicial ideologies should be along lines of text versus intent. I feel that most judges who actually take themselves and their positions seriously should not rely upon Constitutional originalism to draw their conclusions. The Constitution was written at a time when black Americans, then slaves, were considered to be worth 3/5 of white Americans in taking the census count. It was also written at a time when white, land-owning, male Americans were the only people allowed to vote in the entire country. An originalist view would largely exclude the perspectives of millions of Americans who were only franchised in the 20th century.

  2. I personally don’t disagree with Amy Coney Barrett’s judicial philosophy of originalism. I believe that the constitution was written to give a framework to our country and to be the law of the country. The law should be interpreted as is, which means judges should not put their own biases or opinions into interpreting laws. the argument the article makes about The Air Force being unconstitutional is it a very literal interpretation of this philosophy. While the point that the Atlantic is raising am been right I do not believe this is what Judge Amy Coney Barrett means.
    The Supreme Court has recently become very political, Democrats wanted point left-leaning judges and Republicans trying to put more conservative-leaning judges. To me, this is not what the Supreme Court was meant to be. The Supreme Court was meant to be the legal aspect of the government keeping both the Legislative branch and executive branch in order. It was meant to act as an unbiased check of these branches, which interpreted the laws as written. There should be no right or left-leaning judges. If the Airforce is not constitutional, then the legislative branch should change the laws to make it be if that is what they decided. The supreme court should not be making decisions, only interpreting the law as it is written. The article also goes on to explain that the country’s principles and values have expanded over time so that the interpretation of laws should reflect that growth. I do not believe that this is what the constitution is for, or laws for that matter. Or the government was sett up to be guiding principles of our country, which could be subject to change. This is exactly the reason we have amendments to the constitution so that the laws can change if they do not reflect the country.
    For these reasons I do not believe that originalism is supposed to be taken as literal is this article’s taken it. To me what it means is that the laws were written for a reason, and it is not up to the Supreme Court to bend the interpretation of these laws. The Supreme Court is put into place to interpret the laws of how they were written and give legal guidance to both the executive and the legislative branches. Yes, the principles and values of a country may change, but that does not mean the laws do. It is up to the legislative and executive branch to change these laws, not the Supreme Court to interpret them based on the change of principles and values.

  3. This article discusses how originalism is an outdated way of thinking that Congress continues to use to justify their decisions. Originalism is defined as a type of judicial interpretation of a constitution that aims to follow how it would have been understood or was intended to be understood at the time it was written. While this idea may seem to be straightforward at first glance, it actually is a rather outdated one because it fails to consider the changes that have come with future society. It’s been centuries since the U.S. constitution was created, and American society has changed drastically over the years. There are things that exist now that would never have been imagined by the people of the past. The problem that originalism presents is that it makes judgement calls based on how the old American society functioned, instead of accommodating for how things may have changed over the years. The article uses the Air Force as an example of why originalism wouldn’t work as an accurate system for use in the present… “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”.

    Even Thomas Jefferson, one of America’s founding fathers who helped draft the Constitution we all know today, pointed out that the law should evolve alongside society. He knew that the world would change in ways that nobody in his day and age would even dream of, which is why he thought it was most appropriate for the law to change with the times to bring justice and freedom to the people of the future. Quoted from Thomas Jefferson himself, he says this: “I am certainly not an advocate for frequent and untried changes in laws and constitutions… 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”.

    What I like most about this article is that it shows that there is still much work to be done when it comes the law. America has a stable set of rules that have kept the country together for as long as we know… however, as shown by this text, there are holes in this idea of originalism. I agree with the author’s claim that we our constitution would be fairer and more effective if it applied to every aspect of today’s society. Things are always changing with time, and I believe that judicial law should accommodate for those changes.

  4. I am honestly surprised that the court has rushed to confirm Amy Coney Barrett as the new justice of the Supreme Court and replacement of the late Justice Ruth Bader Ginsburg. I thought the process would have taken longer due to the fact that elections are just around the corner. Nevertheless, in this article, Angus King discusses the general approach Barrett plans on using during her time in office– that is, originalism. Justices with an originalist approach typically refer to the framers’ intentions when interpreting the constitution. King makes a critique of the originalist approach in that solely relying on the framers’ intentions is not always easy to do in a world that is forever changing and evolving. For example, King mentions how in this day and age we have interpreted “freedom of speech” to be a right that can also be applied to corporations. King argues how can one use an originalist approach in deciding that “freedom of speech” applies to corporations, “which didn’t [even] exist in their modern form in 1787?” Interpreting and applying the constitution to cases today by way of originalism is not always as straightforward as it may seem. In other words, in many cases, the framers’ intention in 1787 looks a lot different in the year of 2020. This does not necessarily mean that the Court should not rely on precedents, but originalism may have faulty aspects in that it does not necessarily consider how America has grown and transformed over the years.

    Personally, I believe that a more pragmatic approach is more appropriate in today’s world– that is, a more evolving constitutional interpretation. This is not to say that the foundation of how America was founded is not deemed important enough to pay precedence too, but pragmatism considers that circumstances change, while originalism relies solely on the framers intentions that were a result of the eighteenth century. It is important to remember precedence when necessary, but pragmatism acknowledges that what worked in the 1800s may not always work for what is taking place now in the 2000s. For instance, the constitutional convention– where the framers assembled to create the constitution, did not incorporate minorities such as black people (also known as slaves at the time) and women to have a say in how the constitution would also apply to them when those same minority groups would later on be given the same rights that males and white people had. Regardless of the framers intentions, the constitution is supposed to be a reflection of “we the people.” However, in the eighteenth century, “we the people” only applied to those of a certain race, gender, and financial status. George Wright in the Marquette Law Review states “Originalism is actually part of the problem. We can make progress on the problem of constitutional legitimacy not by adhering to originalism, but only by adopting some alternative that better addresses the systematically exclusionary history crucial to constitutional originalism” (694). I personally do not identify with being an originalist, however, that does not mean I don’t believe originalism hasn’t been effective in some cases. However, I believe before one dominantly relies on the use of originalism, he or she must consider the extent to which originalism may exclude minority groups and find an alternative approach.

    Works Cited
    Wright, George R. “Originalism and the Problem of Fundamental Fairness.” Marquette Law Review, 2008, core.ac.uk/download/pdf/148687576.pdf.

  5. Originalism is a hypocritical approach to interpreting the American Legal System. I agree with this post entirely and am pleased with the way it frames its points. Amy Coney Barrett has sadly latched onto one of the laziest and most “gamified” views of interpretation, where growth and change are not an option unless it benefits the narratives of these judiciaries. To take her logic to the extreme, there would be tons of laws and regulations that would not be allowed to exist under her thinking, yet they do. Are they all super-precedents? Surely not, so there is an intent behind the sweeping statements originalists make and the moments in which they choose to enact the constitution writers’ meaning. Trains of thought like this impede progress, the overall goal of judicial review should not be to cause reductions in new ideas that are brought forth. This is where Amy Coney Barrett and other justices similar, like the late Antonin Scalia, confuse progress with rulemaking. The article is humorously blunt by stating that allowing and providing for progress is just “judges doing what they’re hired to do.”

    I find it to be a power shift towards trains of thought like this with the sad death of the wonderful Ruth Bader Ginsburg, as now Barrett is replacing her. I’ve heard the coming time with Amy Coney Barrett referred to as a potential powderkeg, as there is so much on the line in terms of how laws could be affected by Originalist thought.

    Perhaps the weirdest aspect of Originalism is how in the attempt to stay in alignment with the Constitution drafters thought process, we lose the ideals of progress and growth. Thomas Jefferson himself understood that the nature of the country could change over time, the people could be shaped with new outlooks. The one unifying thing about Americans is the belief in democracy and progress, and many founding fathers wanted the Constitution and our interpretations thereof to reflect that.

  6. A very interesting topic as there is a lot of debate out Amy Coney Barrett right now in the US. She does have a rather interesting philosophy that you have to look at how the constitution was written back in the day. Which I think is true, if you are a judge, you are looking at the rules being the constitution and seeing how it related to a current issue.

    With regards to the Air Force, the US Air Force officially became an armed service in 1947 following WW2. During WW2 and before the Army had Planes, Airborne, Bombers, ect. It was deemed to be made its own service with an Act of 1947. I disagree with this article that Amy Coney Barrett’s philosophy doesn’t hold up. This article states that first the judge will follow what is written and then apply what was in the minds of the framers. For this instance, yes it says there was mention of only a Navy and Army. At the time, that was the soldiers being the army and the ships being the navy. Having naval ships has the highest technological advance in that time frame. Every single military force was mentioned in constitution. Therefore, to look at how the framers would view an Air Force would be constitutional. If they wanted the max force capabilities in 1776, they would want the maximum forces in 2020. Thus, this would include an Air Force.

    I know another topic this is often controversial is gun control and the second amendment. The framers obviously didn’t know the technological advances we would have today and were limited to there time period. However, from Amy Coney Barrett’s philosophy, they didn’t have restrictions on fire arms back then. And to this point, there were cannons and many types of rifles with no restriction. To Amy’s philosophy, there wouldn’t be any regulation today as well.

    The way this philosophy is worded you can apply it to a changing world but that is still hard to do. This document was written 200 years ago and may need some updating to follow the times, however then you are changing what the original framers had in mind for the shape of the US. By moving away from what the framers originally wanted, many the US’s past decisions to uphold the constitution would be for what cause? This is not an easy topic to debate, but that is why we have a supreme court. These justices are able to interpret the meaning on laws and the constitution and explain their reasoning for doing so. In this process, it allows other courts to make decisions based on the Supreme Court setting the standard.

  7. Our world has developed immensely since 1787 and the writing of the United States Constitution. Industries, technology, and capabilities of the human mind have grown in unpredictable ways causing shifts in the way we carry out our everyday lives. It is because of these changes that our Constitution should no longer be viewed with a sense of originalism. This article essentially argues that we need to interpret the laws in the context of our growth, not merely the plain meaning of the text itself. I completely agree with this. We see it very commonly in our discussion of cases that all events, words, contracts, and actions need to be considered in context of the entire situation. Why shouldn’t this be the same for our laws?

    Originalism is not flexible to ethical, moral, or political growth—three aspects of development that are crucial to our current society. As Thomas Jefferson was quoted in this article, “…laws and institutions must go hand in hand with the progress of the human mind.” Interestingly enough, the landmark case of Brown v. Board of Education was viewed with this progression of humans in mind. If this case was judged with an originalist view, we may have never seen the integration of schools across our nation. Similarly, if the case of Loving v. Virginia was judged with an originalist view, we may have never experienced the legality of interracial marriages.

    The fact that a judge who strongly promotes having an originalist view of the Constitution was confirmed to the Supreme Court is concerning to me. Justice Amy Coney Barrett did not hesitate to promote her originalist views during her confirmation hearings. While I believe in some cases using the plain meaning of a text is easier in solving arguments about it, this should not be the only way our Constitution is used. It was prominently created for the “general welfare” of all Americans. So, it should be interpreted to meet the needs of all Americans in all contexts. Deciding landmark cases with the view of men who lived in 1787 is not the way to ensure equal justice under law for a country developing as quickly as the United States.

  8. This opinion piece from The Atlantic was unsurprisingly biased towards the left, thus against Amy Coney Barrett’s political leanings. I mean, is it that hard to conclude they would be in opposition to the GOP president’s nomination to the Supreme Court of the United States? Not really. As a result, the article details the various imperfections and flaws they perceive in the newly appointed Supreme Court justice. Since the passing of Supreme Court Justice Ruth Bader Ginsburg, many controversy has surrounded 45th President Donald J. Trump from filling in her seat. More importantly, it is alleged by the late Ginsburg’s granddaughter that her final wish was for her seat to remain vacant until after the 2020 presidential election closes. President Trump disregarded these claims, refuting them as a mere possibility of occurring. Either way, the nomination of Judge Barrett spurred and led to the appointment of Justice Barrett. Today, many of the left are opposed to Justice Barrett’s political opinions. Clearly, the most upset are those that lean towards Democrat and away from Republican. Whether or not you are Republican or Democrat, you could blankly state that one party disagrees with the other. Personally, I am neither and consider myself an Independent voter.

    Regardless, the article details ‘originalism,’ which in essence sounds vaguely similar to the concept of constitutionalism. As in, following the United States Constitution without much interpretation. The key difference between the two is that originalism leaves room for little (just barely) more interpretation, and that is found in what is supposed to be through the mindsets of its originators, the Founding Fathers of this nation. Sounds about right for a conservative to do, to me. Nothing else really surprises me, here. The article just claims that seeking the perspective of long dead individuals is outdated and ignorant to current events. For example, they include that the U.S. Constitution requires the government to carry out an Army and Navy. However, it does not mention the Air Force. Thus, rendering the entire document a poor basis for how to interpret and read law. Right? No. The U.S. Constitution, in the eyes of most conservatives, at least, including Justice Barrett’s, serves as a foundation for continuing on with their legislative decision-making. I am not here to defend Justice Barrett because I am impartial to her, merely since I have not studied enough about her to make an educated opinion. However, what I may say is that ‘originalism’ is nothing new, nor is the fact that the left disagrees with it. Take a look at the authors of this article. Angus King Jr. is an independent senator (one of two, the other being Bernie Sanders) of Maine who caucuses with the Democratic Party. As for Heather Cox Richardson, the Harvard graduate who chronicled the controversy and scandal between President Trump and Ukraine. These summarizations are not here to understate what they represent, nor is to discredit the validation of what is being said. However, comprehending who and what your sources are takes us one step closer to gaining a better picture of what agenda, if any, might be pushed. I would like to see more facts included in these articles, explaining in thorough detail why they oppose a side; not these odd, analogous stories or terribly-composed arguments, lacking substance. You would think such high profile characters would make a compelling argument.

  9. President Trump’s nomination of Amy Coney Barrett for the supreme court was recently approved. Barrett is a Republican and her approval will make the supreme court lean 6-3 in favor of republican views. When asked about what will guide her interpretation of the and application of constitutional principles, she said she will be guided by “the judicial philosophy known as “originalism.” A big reason why originalism will be what guides Barrett is because the late Antonin Scalia strongly followed it and Barrett clerked for Scalia. Interpreting the constitution through an originalist perspective can be easy at time but can also be very complicated. For example, under the constitution the president should have to be 35 years or older. A complicated part of the constitution is the Air Force. The Air Force is never mentioned in the constitution so is it unconstitutional to have an Air Force? The author of this article feels like, “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.” Originalists are exposed for their dishonesty when they are hesitant to follow their own logic which set landmark cases of the Supreme Court. Some example of this are Brown v. Board of Education and Loving v. Virginia. According to the article, “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.” If under the originalist view, they do not support those cases then I do not want someone who believes in that in our Supreme Court. There is no room for racism in our country and it should not especially be in our Supreme Court. After reading this article, my opinion that Amy Coney Barrett should not have been appointed to the Supreme Court still stands after reading this article. I think it is very bad when the Supreme Court sways towards one political party. I also do not like how Mitch McConnell rushed the process for President Trumps nomination before an election and denied Obama’s nomination before the election. McConnell clearly is biased towards Republicans and he has no business holding the position he does. With the impeding election coming up, it will be interesting to see how the winner handles this situation. If Trump win he will try to push across his legislation and if Biden wins he will have lots of trouble getting any legislation passed.

  10. Amy Coney Barrett’s confirmation has come with a whole lot of scrutiny. Questions about hypocrisy stemming from Obama’s attempt to appoint a justice in 2016 have been at the forefront of Barrett’s trial. While I have my opinions on that, we are going to talk about her judicial style because the fact is that she got appointed, so that will not change. I definitely see the merit in the “originalism” point of view. Many parts of the constitution are clear cut, and they were meant to stay valid no matter what time period. However, the point of the American legal system is to constantly improve. The world we live in today is much different that that in 1787. While things like the right to free speech and protest should remain forever, we cannot view the founding fathers as being perfect. Nobody is perfect, and there have been huge changes in social and political life since then. That is why we have added to the constitution over the years, it is meant to be a template for the country, but it can still be a running document. There was no civil rights of women’s suffrage movement in 1787 that I know us, at least not to scale of those in the 20th century, so it makes sense that the lawmakers back then would not have included provisions to give minorities and women more rights. The point of the human species is to evolve, and that happens by learning from mistakes and adapting to new situations. If we remain stagnant forever, there will be no progress. I feel like the founding fathers wanted there to be progress, and the constitution does say equal rights for all, so I think they would want it to be edited to include progressive movements and keep our country moving. In all, I would personally say the originalism way of perceiving the law goes against common sense. Because they want to follow what the forefathers said, but those forefathers would want the country to continue to progress, not stay the same. Again, I see the merit in that way of thinking, but I personally feel like it should not be your sole way of thinking especially if you are a Supreme Court Justice. You have too much power to act like that and if Justice Barrett really followed originalism, then she would not have the right to vote or hold the position she has today.

  11. This opinion piece from the Atlantic is very obviously biased and leaning left against the newest Supreme Court Justice Amy Coney Barrett. Barrett is of course filling the state of the late liberal judge Ruth Bader Ginsburg as Barrett’s confirmation occurred with just days until the election. President Trump nominated Barrett with a month until the election despite Ruth Bader Ginsburg’s dying wish reportedly being that the President wait until after the election to name a replacement. This nomination was then confirmed by the Republican majority Senate in a 52-48 vote. This came after a Republican Senate Majority leader Mitch McConnell held a vote with the election less than a month away after he would not grant President Obama a vote on Merrick Garland with 9 months until the election after the passing of Antonin Scalia. This hypocrisy has made this topic a loaded issue especially considering the conformation of Barrett gives conservatives a 6-3 or 5-3-1 advantage on the Supreme Court depending on if you view Chief Justice Roberts as a conservative or as a swing vote.
    The article attacks Barrett’s ‘originalist’ view of the Constitution trying to poke holes in the ideology. Originalism is a view Barrett shares with the late Conservative Justice Antonin Scalia who she clerked for. Originalism means interpreting the Constitution as it is written and under the original meaning of the text. The article claims that Originalism is flawed using an example that under originalism the Air Force would be unconstitutional. Since the Constitution says that Congress is authorized to establish and support an Army and a Navy but no mention of Air Force, so that it would be Unconstitutional. The point that the Atlantic is trying to make is that the Founding Fathers did not leave to see the first airplane and could not have comprehended the need for an Air Force. This gives rise to the position that is often considered the counter to originalism, living constitutionalism. Living Constitutionalism which leaves the Constitution up to interpretation far more than originalism and is the liberal viewpoint while originalism is conservative. This is a partisan article that splits this issue along party lines and attack the idea of originalism in the wake of Barrett’s conformation to the Supreme Court.

  12. While Judge Barrett sees non-originalism ideals as “judicial lawmaking,” I feel as though this is far from the case. And the writers of this article seem to agree with me. The article states that non-originalism ideals aren’t “judicial lawmaking,” rather those ideals are just “judges doing what they’re hired to do.” I agree with this sentiment for many reasons. The biggest one of these reasons is because of the time frame. The Constitution was written about 250 years ago, so I am sure that none of our founding fathers anticipated this country growing in population, technology, and power that it ended up growing to the points that we are currently at. For this reason, I feel as though the Constitution should be used more as a guideline that judges use and interpret, rather than just the end all be all for arguments. This article presents a good example as to why originalism is an outdated ideal for judges to be using. The article talks about how the Constitution authorizes Congress to establish and support an army and navy. However, it says nothing about supporting an air force or other armed forces. It only says army and navy. By originalistic ideals, any armed forces outside of the army and navy would appear to be unconstitutional, but this is not the case. This is a perfect example as to how the Constitution is too outdated to be viewed with an originalistic viewpoint. This is a prime example of a technological advance that our founding fathers were unable to foresee resulting in a lack of law in the Constitution. This article says that “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.” I agree with this wholeheartedly. Originalism is a flawed ideal to have for the sole reason that every person will have their own interpretation of any given clause of the Constitution. To expect judicial work to be cut and dry would take away from every citizen’s individuality, and that cannot be something that a job asks of its employee.

  13. While reading this article the term originalism was a familiar word I have heard in the textbook this year. When reading the definition of the term, it seemed like a pretty easy concept to understand. Originalism states that one should judge the law exactly the way as it was written. This might seem like a clear and concise way to intercept the law, like the US constitution. Amy Coney Barrett, believes in this idea of originalism and says that all judges should apply the law exactly the way it was written. In the article it mentions some examples like “Congress is authorized to establish and support an Army and Navy”, but what about the Air force, Coast Guards and Marines. According to orginialism, these other branches are unconstitutional, but now it is necessary.

    The term originalism implies that judges should interpret the law the way it was written many years ago, without thinking about how the world works today. The constitution was written a long time ago, by white men and does not include the women or minorities viewpoints. The constitution, in my opinion, is a guideline on how to interpret the law. The job of the Supreme Court should be to interpret and apply these guidelines keeping in mind the people today. Today, we are modernized people, who live a lot more differently than how Americans lived when the constitution was first written.

    In my opinion, a judge should not intercept the law exactly the way it was written. Each case is different and unique, that it is not all said in the constitution. The Supreme Court should keep that in mind, when deciding on cases that will affect many people in this country. The US constitution does not talk about many things that are happening in the present. I hope the Supreme Court makes decisions based on what is good for the people and not just for themselves or their political views.
    https://www.merriam-webster.com/dictionary/originalism

  14. First off, I believe Amy Comey Barrett’s nomination has been under intense scrutiny. Is this scrutiny warranted? Maybe so, given that the US Supreme Court decides on cases that set the precedent for lower courts and challenge the constitutionality of laws passed by Congress. From the article, the author explains the originalist view, “…and that Congress is authorized to establish and support an Army and Navy. But wait a minute. What about the Air Force? Is it mentioned in the text? Nope” (https://www.theatlantic.com/ideas/archive/2020/10/originalism-barrett/616844/). I feel as though this is a weak argument because airplanes in the military weren’t invented yet. I feel that the originalist view applies to technologies that existed during the Founding Fathers’ time, but if new technologies come to light that didn’t exist in the 18th century, it doesn’t essentially discredit those inventions. For example, I believe the originalist view applies more appropriately to the Bill of Rights. Take the Second Amendment for example. The drafters of the Constitution enabled citizens the right to bear arms, to ensure that they could protect themselves in the event the government become so corrupt and worked against its constituents.
    With that being said, I believe I would be split on interpreting the Constitution word for word. Constitution Center describes one of the primary functions of the document that controls our government, “This is the case not only because of the Madisonian system of checks and balances and the divisions and allocations of power alluded to above but also because Article V makes it very difficult to amend the Constitution while the Senate filibuster (a build-out) makes it hard to pass even ordinary laws” (https://constitutioncenter.org/interactive-constitution/white-papers/on-originalism-in-constitutional-interpretation). I think some parts of originalism are good, such as preventing the passing of laws without a drawn-out process to recognize the potential consequences of a change.
    In regards to Amy Comey Barrett being qualified to serve on the Supreme Court regardless of her jurisprudence, I think she is qualified to serve on America’s highest court. It’s important to note that there are no hard-set rules to becoming a justice on the Supreme Court, “The Constitution does not specify qualifications for Justices such as age, education, profession, or native-born citizenship. A Justice does not have to be a lawyer or a law school graduate, but all Justices have been trained in the law” (https://www.supremecourt.gov/about/faq_general.aspx). I mention this because Justice Barrett’s qualifications have come under fire, such as her only serving as a judge on the Court of Appeals for only three years, from 2017 until now (https://crsreports.congress.gov/product/pdf/R/R46562). However, it’s important to note she obtained her law degree from Notre Dame School of Law in 1997 and also is a law professor there. Hopefully, Justice Barrett uses her position to rule fairly and benefit the American people.

  15. The “originalism” that Amy Coney Barrett is promoting a view of society through the eyes of the men who wrote the Constitution of the United States of America in 1787. Unfortunately for Barret, 1787 was over 200 years ago. Times are changing. There are more societal issues than the men in 1787 could even think of. This blows my mind that she could even say something like this because of how different our society is today than it was back then. I like the example the article uses about the United States military as a whole. According to the constitution, we can only have an army and a navy. Does this mean that we restrict ourselves to an army and a navy? Are we not supposed to adapt to the technology that has advanced over time and build an air force? This example alone goes to show how poor of a mindset that is. In nature, if animals cannot adapt, they die off. If we, as a country, did not adapt from our late 1700’s counterparts, we would not be here. Where originalism has its place, is the small obvious things that do not take a lawyer to figure out. For example, the minimal age of the president. It does not take a genius to read that and realize that the age is 35. I could not agree more with Thomas Jefferson’s quote about how laws and institutions evolving with the human mind. Barrett will create a 6 to 3 imbalance on the Supreme Court, I did not support it. I tend to have more conservative views, but with 6 of the 9 justices being republican, I cannot support that. Half of the United States is lacking representation on the supreme court, where, I believe, there should be the most even playing field of all the branches. Hearing her say something as closed minded as this is very worrisome because it presents many questions. Are we going to revert back to what we were 60 years ago? In a society where there are so many issues right now, we need to move forward, not go backwards. According to USA Today, some believe that Barrett’s originalism could lead to racist policies. This is literally the issue that needs to be fixed. It is time to promote policies that promote racial equality, not go back in time! Hopefully, the other justices on the supreme court realize the potential issue at hand and do everything in the power to keep moving forward as a society.

    USA Today- https://www.usatoday.com/story/news/investigations/2020/10/30/amy-coney-barrett-critics-originalism-racist-policies/6068929002/

  16. One of what I believe to be a strong base in my moral code is I do not approve of those who say one thing but then act differently. In the case of Amy Coney Barrett, the ideas that this new Justice of the Supreme Court subscribes to reeks of this sort of hypocrisy. The article in The Atlantic examines Justice Barrett’s philosophy, as the judicial views that she possesses will affect the Supreme Courts for the many years she is projected to continue serving on. The judicial view that is causing this sort of rapid investigation is the philosophy of “originalism.” To briefly summarize, this is where a judge adheres to the exact words in the Constitution, and if the wording is not present, then put themselves into the minds of those who wrote it. They also accuse anyone else who does not do this method of legal thinking to be undergoing something called “judicial lawmaking.” This term is when a judge is, rather than trying to uphold the law, they make their decision as a way to change current legal policy to suit their own views. Where my perspective of the hypocrisy in Justice Barrett’s view comes into play is that a Justice of the Supreme Court has to be involved in “judicial lawmaking” anyway. For example, there are numerous case decisions that have effectivly changed existing policy regardless of political bent, such as Roe V. Wade, Marbury V. Madision, Brown V. Board of Education, and Obergefell V. Hodges. These historic cases, as most Supreme Court cases do, changed what was legal in American law. To claim that the Supreme Court is not allowed to set legal policy is to fly in the face of what job Justice Barrett has been appointed to. And while I personally may not like or approve of her other ideas, and especially not her views on the Constitution, I fully believe that it is well within her rights and duties as a newly appointed Justice to the Supreme Court that she is able to use her vote on the court to get her views on how America should be legally across. In smaller courts, it makes less sense as they have less power, but the whole concept of the Supreme Court is it should be the supreme voice on legal matters in this country. If the Supreme Court is only allowed to uphold a document from the 1700s but not make any relevant changes to the new United States of America we find ourselves in, then the Supreme Court is effectively stripped of the power it used to wield to change this country’s course in history.

  17. Originalism does not work in modern day society. The country progresses substantially year to year, let alone within 233 years. It is ridiculous to believe everything written in the Constitution in 1787 is still applicable today. The world is extremely different now and is everchanging. This does not only apply to the obvious technological advances, but also basic human rights. Slavery was still legal, and women did not have the right to vote at the time the Constitution was written. Does this mean, to Amy Coney Barrett’s standards, that these things are unconstitutional?

    The issues the Supreme Court must handle are more complex than simply reading them in the Constitution. Issues that arise in the country is not black and white, and taking the original Constitution for face value treats it as it is. As stated in the article, cases like Brown v. Board of Education technically fail the originalist test. The constitution was written when segregation was completely legal, so branching away from that is unconstitutional. As the article stated, “The real problem with the originalist theory is that it allows no room for ethical, moral, or political growth. If the Framers did not think it, it’s not allowed.”

    In my opinion, calling herself an originalist is an easy way to push her conservative agenda. At one-point gay marriage was seen as unconstitutional. Barrett has stated her religious beliefs go against gay marriage and gay rights. The Constitution does not address this topic, so Barrett can easily say she is following the original text when going against these freedoms. Abolishing these rights would reverse the progress the country has made. The Constitution should provide structure of how the government runs the country but should not be taken verbatim. Standards change and withholding the ability to branch beyond the original text is destructive to society. Thomas Jefferson made the insightful analogy that originalism is equivalent to wearing a child’s clothing for your whole life. You outgrow things and adaptions must be made. The country and the Constitution is far from perfect, and originalism prevents growth. The Supreme Court should be working to better society, not keep it stagnant.

  18. The judicial system and the Constitution are designed to evolve and adapt to the progressiveness of society. Amy Coney Barrett’s argument of using originalism as a guide in judicial practices is impractical, not only that the political views and aims from the 1700s are unrefined, originalism also undermines the power and value of the amendments process. By Barrett’s logic, the constitution, as written, would provide the primary reasoning for the supreme court’s decisions and demeaning the influence of precedent cases. Some would argue that the premise of originalism is to limit judicial discretion, if judges are not bound by words and history, they will inevitably exceed the limits of their judicial authority and, like “activists” or “super-legislators,” make the Constitution say whatever they want. However, originalism is undermining in itself, Nowhere does the Constitution explicitly state that textualism, no less originalism or any other method, is the correct theory of constitutional interpretation. As mentioned earlier, the constitutional and judicial system in place is designed for adaptation, the founders would no doubt sympathize. 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 the constitution, the very opposite of what textualists and originalists propose.
    The most practical philosophy to guide judicial practices, in my opinion, would be principled pragmatism. Principled pragmatism says that judges should consider not only the constitutional language as the ratifiers interpreted it but also the constitutional language as the modern society interpret it, the structure of the Constitution as a whole, the overall purposes of the Constitution as stated in its preamble and the public policy consequences of each possible decision. With these additional factors taken into account, they may still point in the same direction as the ratifiers’ intent. But they may also point in a very different direction. This creates a balance between concrete laws and progressive acts, though difficult due to the inconsistency, but worthwhile to ensure justice in all circumstances.

  19. Contextualization in looking at the way meaning of words are in context, is a great way in understanding the meaning of something written. Constitutionality of laws is a big writing piece that has many sayings within its writing. Understanding the meaning behind it helps you understand the importance of the wall. Going into this thing if something is written in the constitution is the protection of your rights and power. Then something given to you by the originalism isn’t protected by your constitution and doesn’t really give you the rights of power. In the creation of our country’s existence many of the branches like Congress were built up and had laws given from the constitution. But things like the army were not given any set of rules of law and don’t have to follow many of the rights of power given under the constitution. For example some judges don’t put themselves under the constitutional original isn’t to come to an understanding on where a case can lead. The Constitution was written during slavery times and doesn’t really give the right of power to black Americans, whereas if a judge follows the constitutional conclusions then the equal rate of powers for all will not be justified. It will be racially just. And will divide the country into a racist convention

  20. 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.

  21. 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.

  22. 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.

  23. 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.

  24. 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.

  25. 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.

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