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Commentary: Judge Barrett is an originalist. Should we be afraid?

By Lawrence B. Solum, Los Angeles Times on

Published in Political News

Originalism, the judicial philosophy of Supreme Court nominee Amy Coney Barrett, and her mentor, the late Justice Antonin Scalia, is once again the subject of intense interest and public debate.

Originalists believe that judges are bound by the constitutional text and that its words should be read as the public would have understood them at the time each provision was written.

Why would anyone object to this commonsense idea? One worry is that originalist justices will overrule modern decisions that Americans hold dear.

One such case is Brown v. Board of Education, the landmark Supreme Court case that struck down racial segregation. But originalism not only supports the ruling in Brown; an originalist Supreme Court would never have propagated the separate but equal doctrine in the first place.

The Brown decision was necessary because the court in 1896 had virtually nullified the Privileges or Immunities Clause of the 14th Amendment. That clause made it unconstitutional for states to deny basic rights to any citizen of the United States. Had the court in Plessy v. Ferguson given that clause its original meaning, it would have struck down a Louisiana Jim Crow law and never created the pernicious doctrine of "separate but equal."

Another worry is based on the false assumption that originalists want the world to stay the same as it was in 1787 and that they would ignore the words of the Constitution, asking instead, "What would James Madison do?"

 

This misunderstanding leads to truly silly arguments. Is the Second Amendment restricted to muskets? No, because the word "arms" includes all weapons that can be carried, including modern rifles and pistols. Would the Fourth Amendment prohibition on "unreasonable searches" allow the government to send in drones and robots to search your home? No, the word "search" includes robot searches, drone searches and other kinds of searches we cannot yet imagine.

Originalists believe that judges are bound by the constitutional text, which can be applied to contemporary circumstances in ways that James Madison could not have foreseen.

But this is not to say that originalism requires every policy outcome favored by liberals. On most great questions of policy, the constitutional text is silent. The Constitution creates a framework for democratic politics, but it is up to Congress and state legislatures to enact statutes. The Constitution does not enact the Green New Deal, but it does allow Congress to spend "for the general welfare." Originalist justices won't order Congress to enact a carbon tax, but they would uphold such a tax.

What about Roe v. Wade, which found a constitutional right to abortion within certain limits? One thing is sure: Principled originalists would not vote to affirm or reverse Roe on the basis of their personal moral beliefs. But we should not dance around the fact that Justice Harry A. Blackmun's majority opinion in Roe did not even make an attempt to show that the right is required by constitutional text.

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