Tag archives: Founders

What Is “Originalism”?

by Mary Beth Waddell, J.D.

October 22, 2020

Following last week’s confirmation hearing for Supreme Court nominee Judge Amy Coney Barrett, the Senate Judiciary Committee today unanimously voted her nomination favorably to the floor—with no Democrats even bothering to show up. As Sen. John Cornyn (R-Texas) pointed out, they were continuing their theater from the hearing.

At the hearing, some senators rightly noted that those watching were probably confused by what they saw and heard. The Democrats spent much of their allotted time making speeches in opposition to President Donald Trump and his policies, rather than questioning Judge Barrett and evaluating her qualifications. This gave the false impression that she would have policymaking ability if confirmed as a justice. When Democrats did question Judge Barrett, there was significant focus on her judicial philosophy of originalism. While questions about judicial philosophy are entirely appropriate, some Democrats mischaracterized originalism—leading to more confusion and further elevating the false narrative that she would be a judicial activist.

So, what is originalism?

While there are several strains of this judicial philosophy, we should look to Judge Barrett’s own explanation of the doctrine during her confirmation hearing, especially since it is her perspective that will matter here:

I interpret the Constitution as a law … I interpret its text as text, and I understand it to have the meaning that it had at the time [the] people ratified it. So, that meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it.

She later said:

It’s original public meaning, not the subjective intent of any particular drafter, that matters. We are not controlled by how James Madison [the father of the Constitution] perceived any particular problem, but rather the people at that time.

Of course, Barrett isn’t the only one who holds to this judicial philosophy. Even some with a more liberal leaning, like Professor Akhil Amar of Yale Law School, are originalists.

For guidance on the Constitution’s “plain meaning,” it is important to have some historical context. The Federalist Papers are a series of essays that were written to gain the public’s support for the ratification of the Constitution, so they are a great source of information on the subject. Alexander Hamilton, the principal author of The Federalist Papers, focused on the Judiciary in Federalist 78 through 83 and wrote that the courts should base their decisions on “the fundamental law,” and when a statute is unconstitutional, it is their duty to adhere to the Constitution and strike the statute down.

Some of the Founders feared that the Judiciary, the branch least controlled by the people, could ultimately become the most powerful of the three. Hamilton noted that the Judiciary could not significantly hinder liberty in and of itself, but it would be dangerous if it was ever combined with one of the other branches.

The Federalist Papers are very clear that the Judiciary was expected to be the weakest of the three branches of the federal government. Therefore, Hamilton pointed out that “the supposed danger of judiciary encroachments on the legislative authority” was “in reality a phantom” because its power was bounded by its weakness, constitutional construction, and the legislature having impeachment power if necessary.

With this historical context, it becomes clear that originalism is a judicial philosophy that acts as a brake on runaway judicial power. Looking to the Constitution as our reference point, originalism acknowledges that the Judiciary would be a threat to freedom if it began legislating instead of just upholding the Constitution. Originalism is all about keeping the will of the people central and not imposing the Supreme Court justices’ own beliefs.

It’s important to note that the historical restraint of originalism doesn’t necessitate race discrimination, as was unfortunately the practice in 1791. Democrats implied this as a reason why they generally oppose originalism as a judicial philosophy. As for Judge Barrett, she stated that “Brown [the Supreme Court case that ended school segregation] was correct as an original matter.”

Originalism also doesn’t mean that the Constitution can’t be applied to modern times. Responding to Sen. Ben Sasse (R-Neb.) during her confirmation hearing on how originalism still applies to current issues, Judge Barrett said:

The Constitution—one reason why it is the longest-lasting written constitution in the world is because it is written at a level of generality that is specific enough to protect rights but general enough to be lasting.

When discussing Fourth Amendment issues of today with Sen. Marsha Blackburn (R-Tenn.), Judge Barrett further said:

The Fourth Amendment protects against unreasonable searches and seizures. It doesn’t mean that it protects only the kinds of searches and seizures that those who lived at the time of the adoption of the Bill of Rights could have anticipated. Surely, they could not have anticipated the internet or cell phones or airplanes, for that matter. One can reason from the kinds of privacy protections that were in place in 1791 when the Fourth Amendment was ratified to see if the search of modern technology now is analogous to it.

In her exchange with Judge Barrett, Sen. Diane Feinstein (D-Calif.), the highest-ranking Democrat on the Committee, peppered Judge Barrett with questions on policy and said her vote depended on the answers.  Yet this shows that Democrats want the Judiciary to act as a quasi-legislative body—the very thing the Framers feared. As an originalist, Judge Barrett will constrain herself to the law and not impose her own will on the people. She repeatedly let this be known throughout the hearing.

Having originalist judges on the Supreme Court prevents judicial activism and helps keep the one branch of government designed to be most removed from politics apolitical. The politicization and activism we have seen from the Court in recent decades make it more vital now than ever to ensure we have originalist justices on the Court.

The full Senate will begin consideration of Judge Barrett’s nomination on October 23. Debate and procedural votes will occur over the course of a few days, and the final floor vote is scheduled for October 26.

Let us hope and pray that we will have a new justice on the Supreme Court before October’s end!

Fifty Years After

by Robert Morrison

October 27, 2014

Every poll confirmed that the Republican nominee for President in 1964 was headed for a major defeat. Sen. Barry Goldwater (R-Ariz.) had pulled off an amazing victory to gain the GOP nomination in San Francisco. He had soundly defeated such Eastern Establishment figures as Gov. Nelson Rockefeller (R-N.Y.) and Gov. William Scranton (R-Penn.) Goldwater’s campaign for the nomination is seen today as the beginning of the modern conservative movement in politics.

The liberal media was determined to destroy Sen. Goldwater. They depicted him as the “mad bomber.” Their editorial pages ran hostile cartoons. One typical one showed him as a crazed trainman on a San Francisco cable car. “Streetcar Named Disaster” was the caption for that political cartoon, a reference to the play “A Streetcar Named Desire.”

Despite all this, and fully aware that he was about to make his national political debut backing a losing cause, actor and TV personality, and former union president Ronald Reagan went on national television to deliver a 29-minute speech titled: “A Time for Choosing.”

It’s worth watching this speech in its entirety. We see her a younger, edgier Ronald Reagan than we may be used to. He is angry but his righteous indignation is kept under tight control. He clearly believes that his friend, Barry Goldwater, has been savaged by the Lyndon B. Johnson campaign and by their willing accomplices in the press.

Reagan hammers home point after point, but he takes care to use stories to convey his message. My favorite line is about the Cuban exile who tells of his brutal mistreatment under Communist dictator Fidel Castro. When his American businessmen listeners remark how lucky they are to live under freedom, the Cuban says how lucky he is. “I had some place to escape to!” Reagan makes the point: If we lose freedom in America, there will be no place to escape to.”

I was too young to vote in 1964 and I missed this famous speech. In those days, you couldn’t DVR or TiVo TV broadcasts. But I certainly heard about Reagan’s amazing speech. It raised millions of dollars for the doomed Republican campaign. It was perhaps the only bright spot that fall for the outgunned GOP.

President Johnson carried forty-four states that fall and swept thousands of liberal Democrats into office on his coattails. Towns in Vermont and Kansas that had never elected a Democrat to any office at any level went with the Democrats that Election Day.

But within two years, the wheels were coming off the LBJ bandwagon. Within his own party, opponents to U.S. military involvement in Vietnam began to be heard. Inflation took off, leaving millions of Americans—especially retirees on fixed incomes and service members still enduring the military draft—falling further and further behind. By the time of the 1966 mid-term elections, scores of those Johnson had swept into Congress were swept out by voters.

In 1966, Ronald Reagan was elected Governor of California. He defeated liberal Democrat Pat Brown (father of the current Gov. Jerry Brown) by more than one million votes. Reagan served two highly successful terms as California’s governor.

His election as President in 1980 was still considered something of a long shot, largely because the liberal media continued to view him as “extreme” and “dangerous.” Reagan, however, never reacted angrily. He learned to keep his temper in check and use his well-developed sense of humor to puncture liberal shibboleths.

Still, it’s well worth remembering that it all began for Ronald Reagan this day in 1964, half a century ago. Reagan was what they call a conviction politician. Or, in more recent computer jargon, WYSIWYG—What you see is what you get.

Here’s an example: I attended a staff conference in the federal education department in 1985. Mrs. Patricia Hines had convened the meeting of Reagan appointees to decide on a policy to pursue about education. Of five options offered us by the career civil service employees, Mrs. Hines opened the meeting by saying: “Options number three and number five are off the table, but let’s look at one, two and four.”

Innocently, I asked why she had ruled out those two choices. As if she was gently chiding a slow student, Mrs. Hines said: “Numbers three and five are specifically condemned in the Republican Platform on which President Reagan was elected. This president may not be able to do all the things the Republican Platform recommends, but he will never do something the platform condemns. That’s basic to government by consent of the governed.”

I was embarrassed that I had not studied the Platform, but I was thrilled to be so corrected. Ronald Reagan believed that the people who nominated him and elected him had done so because they believed in him and trusted him to do what he said he would do. He would not break faith with them.

For thirty years—from this day in 1964 until that day in 1994 when  he wrote his dignified and moving letter telling us he had Alzheimer’s Disease, Ronald Reagan was the acknowledged leader of American conservatism.

I especially like the fact that he quoted Founding Father Alexander Hamilton in his 1964 speech:

The nation that prefers disgrace to danger is ready for a master—and deserves one.”

This quote reminds us that Reagan quoted the timeless wisdom of the Founding Fathers more than any of the four presidents who preceded him (and more, too, than any of the four presidents who have succeeded him.)

America’s leaders have disgraced us all too often in the tumultuous years since President Reagan left us. Strong majorities today tell public opinion pollsters our country is on “the wrong track.” There is deep cynicism about political leadership.

Studying Reagan’s career is not an exercise in nostalgia. It is a necessary task if we would seek to place our beloved country on a better course.

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