The false promise and real danger of Barrett’s originalism

Ruth Bader Ginsburg was a champion of women’s rights both before and after she became a Supreme Court Justice. Her replacement, Judge Amy Coney Barrett is not. On the contrary, Barrett espouses originalism — a theory of how to interpret the U.S. Constitution that may well undo many protections advocated by Justice Ginsburg.  

The U.S. Constitution can be an opaque document, and therefore needs to be interpreted. There are different theories of constitutional interpretation that rely on different interpretive guidelines. Originalism is one of them. It is, however, a theory of the privileged.

While there are many different strands of originalism, in general originalists believe that the meaning of the Constitution was fixed at the time of the founding and that we should understand the Constitution in the same way as the founding generation. This is in contrast to a theory like living constitutionalism, which, generally speaking, argues that the broad principles established by the U.S. Constitution should be interpreted in light of changes in society.

A theory of constitutional interpretation where the scope of constitutional protection is pinned to a time rife with hierarchies based on race, religion, and sex is likely more appealing to those who have historically been privileged along these dimensions. As Mayor Lightfoot wryly noted, “Since the Constitution didn’t consider me a person, in any way, shape or form, because I’m a woman, because I’m Black, because I’m gay, I am not an originalist.”

A Supreme Court Justice could invoke originalism as justification for eliminating the right to abortion, or marriage equality.  A true originalist interpretation of the Constitution would probably conclude that the Constitution does not bar segregation as held in Brown v. Board of Education, although even the keenest originalist would probably not dare to overrule it.

But other, newer rights, critical to the equality and dignity of many of us, might be fair game. Barrett herself has written that “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”

Originalists have argued that they espouse originalism not because it benefits the privileged but because without it, judges could impose their own personal preferences onto constitutional law. Originalists complain that activist judges have made up constitutional rights — like the right to abortion, or the right of same-sex couples to marry — that the Constitution was never meant to reach. Originalism, its proponents argue, forces judges to interpret the Constitution by relying on something objective, namely the original understanding.

But this claim to objective constitutional interpretation is false for several reasons. To start, uncovering the original understanding from a hundred or more years ago requires interpreting history, and history may be open to as many interpretations as the Constitution. Again and again, we have seen the Supreme Court look at the same history, and come to very different conclusions about it. Both the majority and dissent relied on an originalist approach to interpreting the Second Amendment, for example, and came to exactly opposite conclusions about whether the Second Amendment right to bear arms was limited to bearing them in state militias. Indeed, one might argue that the originalist majority made up a right that they favored — the right to own weapons for self-defense.

Moreover, the assumption that everyone in a particular generation agreed as to the scope of a constitutional clause is just that, an assumption.  As of today, there may have been those who favored an expansive version of a particular clause of the Constitution and those who favored a narrow one. 

But what really gives the lie to the claim that originalism bars judges from imposing their own views is that it is not applied consistently by some of its most ardent supporters. Take Justice Scalia, a longtime originalist. Barrett clerked for Justice Scalia, and has stated “His judicial philosophy is mine too.” Sometimes Justice Scalia invoked originalism, and sometimes he did not. He ignored it when he was striking down affirmative action programs, but insisted on it when approving government-sponsored Christian displays.

Indeed, for all their talk about originalism, and how incompatible hard-fought rights for women or LGBTQ rights are with originalism, there is little discussion among the conservative Justices of what the founding generation would have thought of free speech protection for corporations, or free speech protection for campaign contributions.

Choosing originalism is a choice. And it is a choice of the privileged. 

Caroline Mala Corbin is a professor of law and Dean’s Distinguished Scholar at the University of Miami School of Law, and a New Voices Fellow.