Sunday, October 18, 2020
Amy Coney Barrett will almost certainly be confirmed to the United States Supreme Court – and deservedly so. Judge Barrett is an extraordinary legal scholar and judge, and numerous former colleagues and students have emphasized that she is a person of outstanding character, integrity, and compassion.
Additionally, Judge Barrett is an originalist, which is a theory of constitutional interpretation that requires judges to interpret the Constitution’s words as they were understood by those who drafted its provisions. Yet, originalism has been criticized by many in the legal academy. For example, some scholars claim that originalism leads to unjust and often draconian results, and fails to account for societal changes that the Constitution’s drafters could not foresee. Some scholars also assert that the broad phrasing of many provisions in the Bill of Rights suggests that the Constitution’s drafters entrusted future generations with the authority to divine constitutional meaning based on contemporary societal attitudes. For these and other reasons, many scholars embrace “living constitutionalism,” which states that the Constitution is a “living document” and that judges have the power to create constitutional meaning based upon the evolving needs of contemporary society.
These assertions both misunderstand originalism and misrepresent living constitutionalism. The former is, when properly applied, intellectually honest and fundamentally democratic. The latter is neither. For the following reasons, originalism is, without a doubt, the most sensible and commonsense approach to constitutional interpretation.
Originalism does not lead to unjust outcomes. The notion that originalism leads to unjust outcomes is nonsense. This argument misunderstands both originalism and the nature of judging. First, judges should not – and usually do not – decide cases based on the outcome that a judge desires or the policy that a judge prefers. If judges predicated their decisions on subjective policy preferences – and manipulated or disregarded the Constitution’s text to achieve those preferences – democratic choice would be undermined in favor of nine unelected and life-tenured judges. In essence, originalists recognize that the process of judicial decision-making is critically important to ensure, among other things, individual liberty, de-centralization, bottom-up lawmaking, and the judiciary’s institutional legitimacy. Second, originalism does not lead to objectively unjust outcomes; rather, critics of originalism only object to outcomes with which they subjectively disagree. Of course, that is not a reason to criticize originalism. As Justice Neil Gorsuch explains:
Suppose originalism does lead to a result you happen to dislike in this or that case. So what? The “judicial Power” of Article III of the Constitution isn’t a promise of all good things. Letting dangerous and obviously guilty criminals who have gravely injured their victims go free just because an officer forgot to secure a warrant or because the prosecutor neglected to bring a witness to trial for confrontation seems like a bad idea to plenty of people. But do you really want judges to revise the Constitution to avoid those “bad” results? Or do you believe that judges should enforce the law’s protections equally for everyone, regardless of how inefficient or unpopular or old the law might be? Regardless of who benefits today—the criminal or the police; the business or the employee; immigrants or ICE?
Moreover, to the extent that an outcome is considered unjust, the remedy is to effectuate change by the people through the legislative process – or through a constitutional amendment.
Originalism is fundamentally democratic. Originalism restrains and limits the power of judges to change constitutional meaning. It requires judges to interpret the text honestly and in accordance with what the Constitution’s drafters understood the words to mean. In so doing, originalism promotes respect for the rule of law, prevents unelected judges from substituting their policy preferences for those of legislators and citizens, and preserves a constitutional structure predicated on federalism, separation of powers, and decentralization. As Judge Barrett stated during the hearings, constitutional law is not “the law according to Amy,” but the law as enacted by the people. And contrary to some scholars’ contentions, originalism is not a vehicle by which conservative justices seek to reach conservative results. As Justice Gorsuch explains:
[S]ome suggest that originalism leads to bad results because the results inevitably happen to be politically conservative results. Rubbish. Originalism is a theory focused on process, not on substance. It is not “Conservative” with a big C focused on politics. It is conservative in the small c sense that it seeks to conserve the meaning of the Constitution as it was written. The fact is, a good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequences. Whether that means allowing protesters to burn the American flag (the First Amendment); prohibiting the government from slapping a GPS tracking device on the underside of your car without a warrant (the Fourth Amendment); or insisting that juries—not judges—should decide the facts that increase the penalty you face in a criminal case (the Sixth Amendment).
The alternative – living constitutionalism – is fundamentally anti-democratic. As stated above, living constitutionalists believe that the Constitution is a “living document,” and that judges have the power to create constitutional meaning based upon evolving societal attitudes. The problem with living constitutionalism is that it enables judges to ignore or manipulate the Constitution’s text to achieve preferred policy outcomes. In so doing, living constitutionalism provides unelected judges with the power to decide issues that should be resolved through the democratic process (e.g., issues on which the Constitution is silent or ambiguous), and thus deprives citizens of the power to effectuate change democratically. As Justice Gorsuch stated:
I suspect the real complaint of living constitutionalists isn’t with old laws generally so much as it is with the particular terms of this old law. The Constitution is short—only about 7,500 words, including all its amendments. It doesn’t dictate much about the burning social and political questions they care about. Instead, it leaves the resolution of those matters to elections and votes and the amendment process. And it seems this is the real problem for the critics. For when it comes to the social and political questions of the day they care most about, many living constitutionalists would prefer to have philosopher-king judges swoop down from their marble palace to ordain answers rather than allow the people and their representatives to discuss, debate, and resolve them. You could even say the real complaint here is with our democracy.
Indeed, the anti-democratic and deleterious nature of living constitutionalism was on full display in Griswold v. Connecticut, where the Court invalidated an admittedly silly law banning contraception. The Court in Griswold acknowledged that the Constitution’s text, particularly the Fourteenth Amendment, did not provide a basis upon which to invalidate the law. However, the Court’s majority remained undeterred and decided to create an unenumerated right out of thin air. Specifically, the Court held that “[s]pecific guarantees in the Bill of Rights have penumbras … formed by emanations from those guarantees that give them life and substance.” In so holding, the Court concluded that a judicially-created, non-textual ‘right to privacy,’ which was implied from the judicially-created, invisible penumbras, supported invalidation of the statute. And in Roe v. Wade, the Court relied upon these very penumbras to hold that the Fourteenth Amendment’s Due Process Clause, which was originally designed only to ensure that life, liberty, and property could not be deprived without due process of law, supported a right to abortion before viability. To be sure, I support abortion rights. But I could never support the reasoning in Roe. It is constitutionally indefensible.
Make no mistake: living constitutionalism is not the knight in shining armor that some would have us believe. In fact, it has led to some of the worst decisions in the history of American constitutional law. As Justice Gorsuch explains:
Virtually the entire anticanon of constitutional law we look back upon today with regret came about when judges chose to follow their own impulses rather than follow the Constitution’s original meaning. Look, for example, at Dred Scott and Korematsu. Neither can be defended as correct in light of the Constitution’s original meaning; each depended on serious judicial invention by judges who misguidedly thought they were providing a “good” answer to a pressing social problem of the day.
Indeed, Justice Gorsuch highlights the real and substantial harms that living constitutionalism can cause:
Even when it comes to more prosaic cases, leaving things to the moral imagination of judges invites trouble. Just consider the “reasonable expectation of privacy” test the Court invented in the 1960s to redefine what qualifies as a search for Fourth Amendment purposes. Oh, it sounded nice enough. But under that judge-made doctrine, the Court has held—and I’m not making this up—that a police helicopter hovering 400 feet above your home doesn’t offend a “reasonable expectation of privacy.” The Court has even held that the government can snoop through materials you’ve entrusted to the care of third parties because, in its judgment, that, too, doesn’t invade a “reasonable expectation of privacy.” But who really believes that? The car you let the valet park; the medical records your doctor promised to keep confidential; the emails you sent to your closest friend. You don’t have a reasonable expectation of privacy against the government in any of those things? Really?
Put simply, “the pursuit of political ends through judicial means will often and ironically bring about a far worse result than anticipated—a sort of constitutional karma.” In short, living constitutionalism is not a legitimate theory of constitutional interpretation.
Ultimately, Amy Coney Barrett will be confirmed because she is a brilliant jurist, a person of the highest character and integrity, and a judge who recognizes that “the law of Amy” should never be substituted for the law of the people. Originalists also recognize that – and originalism is, as Justice Gorsuch stated, “the best approach to the Constitution.”
 Justice Neil Gorsuch, Why Originalism is the Best Approach to the Constitution (Sept. 6, 2019), available at: https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/
 381 U.S. 479.
 Id. at 484 (emphasis added).
 410 U.S. 113 (1973).
 Gorsuch, supra note 1, available at: available at: https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/