Originalism & Amy Coney Barrett: The Silly Attacks of the Left

It’s Supreme Court silly season in addition to being election silly season, so we’ve been treated to more silliness than usual of late about how judges read the Constitution. A seemingly endless parade of Democratic politicians (ranging from Hillary Clinton to the mayor of Chicago) have been pretending that originalists think the Constitution should be read as it was written in 1787 without regard to its amendments, and thus to allow slavery, to allow states to deny women the vote, etc. — a position no originalist takes. Even on these straw-man terms, though, it should be noted that the original Constitution simply left many injustices to the voters to remedy: it was carefully written to allow states to ban slavery (as New York and New Jersey did), it empowered Congress to ban it in the territories, and it placed no restrictions on women voting (as they were allowed to do beginning in 1869 in Wyoming). Later, voters who found these powers insufficient enshrined protections directly in the Constitution. Yes, the Founders’ Constitution had flaws, but that’s why they designed it so it could be amended, and why they themselves amended it twice even after adding the Bill of Rights.

First up in attacking straw men, we have Jamelle Bouie’s New York Times column, which attempts to persuade readers that “Amy Coney Barrett’s originalism ignores the significance of the second American Revolution. . . . Barrett’s Constitution is the Constitution of 1787, written in Philadelphia and made official the following year. That’s why her formulation for originalism rests on ratification.” Bouie presents Barrett’s views as if she and other originalists do not even consider the 13th, 14th, and 15th Amendments. This is nonsense. Any originalist will tell you that the legitimacy of judicial decisions enforcing those amendments rests on their ratification by the people, and that their meaning is to be derived from how they were understood in 1865, 1868, and 1870, respectively. This is exactly the same view according to which the unamended provisions of the original document are legitimately enforced by the courts because they were ratified by the people, and are read as they were understood when they were ratified by the people. This is Law 101: It’s the same reason we read statutes written at different times, or contracts signed at different times, based on their meaning when they were enacted.

About the Author

Dan McLaughlin

Dan McLaughlin is a senior writer at National Review Online and a fellow at National Review Institute.

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It’s Supreme Court silly season in addition to being election silly season, so we’ve been treated to more silliness than usual of late about how judges read the Constitution. A seemingly endless parade of Democratic politicians (ranging from Hillary Clinton to the mayor of Chicago) have been pretending that originalists think the Constitution should be read as it was written in 1787 without regard to its amendments, and thus to allow slavery, to allow states to deny women the vote, etc. — a position no originalist takes. Even on these straw-man terms, though, it should be noted that the original Constitution simply left many injustices to the voters to remedy: it was carefully written to allow states to ban slavery (as New York and New Jersey did), it empowered Congress to ban it in the territories, and it placed no restrictions on women voting (as they were allowed to do beginning in 1869 in Wyoming). Later, voters who found these powers insufficient enshrined protections directly in the Constitution. Yes, the Founders’ Constitution had flaws, but that’s why they designed it so it could be amended, and why they themselves amended it twice even after adding the Bill of Rights.

First up in attacking straw men, we have Jamelle Bouie’s New York Times column, which attempts to persuade readers that “Amy Coney Barrett’s originalism ignores the significance of the second American Revolution. . . . Barrett’s Constitution is the Constitution of 1787, written in Philadelphia and made official the following year. That’s why her formulation for originalism rests on ratification.” Bouie presents Barrett’s views as if she and other originalists do not even consider the 13th, 14th, and 15th Amendments. This is nonsense. Any originalist will tell you that the legitimacy of judicial decisions enforcing those amendments rests on their ratification by the people, and that their meaning is to be derived from how they were understood in 1865, 1868, and 1870, respectively. This is exactly the same view according to which the unamended provisions of the original document are legitimately enforced by the courts because they were ratified by the people, and are read as they were understood when they were ratified by the people. This is Law 101: It’s the same reason we read statutes written at different times, or contracts signed at different times, based on their meaning when they were enacted.