10/21/20
In 1987, Robert Bork was denied confirmation to the Supreme Court because his originalist beliefs were deemed a serious threat to constitutional rights. Originalism is no less dangerous for those rights today, yet Judge Amy Coney Barrett’s repeated statements professing her belief in originalism have been met with little objection. Originalists believe that the meaning of a constitutional provision is fixed when it was adopted and that it can change only by constitutional amendment. Under this view, the First Amendment means the same thing as when it was adopted in 1791 and the 14th Amendment means the same thing as when it was ratified in 1868. But rights in the 21st century should not be determined by the understandings and views of centuries ago. This would lead to terrible results. The same Congress that voted to ratify the 14th Amendment, which assures equal protection of the laws, also voted to segregate the District of Columbia public schools. Following originalism would mean that Brown v. Board of Education was wrongly decided in declaring laws requiring segregation of schools unconstitutional. In fact, under the original public meaning of the Constitution, it would be unconstitutional to elect a woman as president or vice president until the Constitution is amended. Article II refers to them with the pronoun “he,” and there is no doubt that original understanding was that only men could hold these offices.
Judge Barrett doesn’t need to explicitly say that she would vote to overrule Roe v. Wade because she has left no doubt by saying that she is an originalist in the mold of Justice Antonin Scalia, for whom she clerked. “His judicial philosophy is mine too,” she told the Senate Judiciary Committee. The rejection of originalism is not new. Early in the 19th century, Chief Justice John Marshall wrote that “we must never forget that it is a Constitution we are expounding,” a Constitution “meant to be adapted and endure for ages to come.” Also, what often is overlooked is that conservative justices ignore original meaning when it does not serve their purpose. One of the worst decisions in recent years was Shelby County v. Holder in 2013, which struck down key provisions of the Voting Rights Act that required states with a history of race discrimination in voting to obtain approval from the attorney general or a panel of judges before making significant changes in their election systems. The court, voting 5-4, said that this violated the principle that Congress must treat all states alike. But no such requirement is found in the Constitution. Moreover, the Congress that ratified the 14th Amendment imposed Reconstruction on Southern states, showing that it did not mean to treat all states alike.
