Supreme Court nominee Amy Coney Barrett’s originalist approach to the Constitution, explained - Vox

Supreme Court nominee Amy Coney Barrett’s originalist approach to the Constitution, explained - Vox
By Ian Millhiser

Judge Amy Coney Barrett’s Supreme Court confirmation hearings begin on Monday, and it’s a safe bet that we’ll hear one word over and over again over the next few days: “originalism.” Barrett is a self-proclaimed originalist, embracing a theory of the Constitution that is also shared by at least two other sitting justices: Justices Clarence Thomas and Neil Gorsuch.

Originalism, in Barrett’s words, is the belief that “constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.” Judges, originalists maintain, should be bound by the words of the Constitution, and the meaning of those words should be determined solely based on how they were understood when they were added to the Constitution.

One of the primary appeals of originalism is that it purports to constrain judges by requiring them to follow a written text even when they dislike the outcomes that text commands. “The main danger in judicial interpretation of the Constitution,” Justice Antonin Scalia said in a 1988 lecture explaining why he is an originalist, “is that the judges will mistake their own predilections for the law.”

At least in theory, originalism prevents judges from making this mistake by lashing them to the unchanging meaning of a written document. And, at least on the surface, its core insight that judges are bound by the Constitution’s words seems obvious: Of course judges should obey the text of the Constitution!

In reality, however, following the text of the Constitution is more complicated than it sounds.

The Hart Senate Office Building Room is set up for the confirmation hearing of Supreme Court nominee Amy Coney Barrett.

 Caroline Brehman/CQ-Roll Call/Getty Images

For one thing, the Constitution is riddled with ambiguous language. What are the “privileges or immunities of citizens of the United States”? What makes a search or seizure “unreasonable”? If the government wants to deny “liberty,” how much “process” is “due”? What’s a “public use” of private property? What is the “general welfare of the United States”?

The meaning of much of the Constitution is vague and uncertain, and it was vague and uncertain when it was drafted. There are limits to what a judge can learn about constitutional meaning by combing through historical documents, or by reading 18th-century dictionaries.

Barrett herself seems to acknowledge this problem. “For an originalist,” Barrett wrote in 2017, “the meaning of the text is fixed so long as it is discoverable.”