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Thursday, October 22, 2020

Explained: What is originalism, which US Supreme Court nominee Amy Barrett believes in?

The legal philosophy which is said to be the opposite of originalism is ‘living constitution’ or ‘modernism’.

By: Explained Desk | New Delhi | Updated: October 20, 2020 8:05:23 am
US Supreme Court nominee Amy Coney Barrett, conservative judge Amy Coney Barrett, US supreme court, originalism, us judges originalism, us elections, latest newsUS Supreme Court nominee Amy Coney Barrett (Robert Franklin/South Bend Tribune via AP, File)

US Supreme Court nominee Amy Coney Barrett, who is widely expected to be confirmed by Republican lawmakers before the November 3 election, has described “originalism” –– or interpreting the country’s Constitution as per the intentions of its 18th-century founding leaders –– as her legal philosophy.

Earlier this week, the Conservative judge was asked during her confirmation hearing what it meant to be an “originalist”, to which Barrett answered, “In English, that means I interpret the Constitution as a law. The text is text, and I understand it to have the meaning that it had at the time people ratified it. It does not change over time, and it is not up to me to update it or infuse my own views into it.”

Barrett, 48, is slated to be the third judge to be appointed by President Donald Trump to the country’s 9-member top court– where justices can potentially serve for life. The late Justice Ruth Bader Ginsburg, whom Barrett is to replace, died last month at 87, having served on the bench for 27 years.

A US Supreme Court judge’s legal philosophy, thus, has a major impact on divisive and consequential issues facing the country –– such as abortion, gun control, healthcare and voting rights.

So, what does ‘originalism’ mean?

In legal philosophy, this theory prescribes that while resolving disputes, judges should interpret the constitution as it was understood at the time it was ratified, irrespective of whether they personally agree or disagree with the outcome of a case decided this way.

According to originalists, the meaning of the constitution is fixed at the time of its framing, either in the form of the meaning of the words used, or the intentions of the drafters. The job of the court is to stick to this original meaning.

The word ‘originalism’ was coined in the 1980s, and has since been popular among US conservatives, who have sought to promote judicial restraint on the country’s federal courts. Adherents of originalism believe that social change should be brought about by new laws made by elected representatives, and not through judicial activism, in which judges make new interpretations of the constitution.

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A self-described originalist, Judge Barrett has been mentored by the late Supreme Court Justice Antonin Scalia –– considered a strong champion of constitutional originalism and judicial conservatism in recent decades.

Criticism of originalism

Critics say that the originalists’ core belief –– that the constitution should be interpreted the way it was written –– is unviable, given that the document’s meaning has remained uncertain despite the efforts of countless jurists since its ratification in 1787 at the close of the American Revolution.

Some have denounced it as another name for right-wing political agenda, and have accused originalists of trying to chip away at hard-earned social reforms by applying outdated beliefs of the 18th and 19th centuries to modern-day legal disputes.

Originalists contest these accusations, and claim that it is their method which in fact delivers less biased decisions. In a TIME opinion piece, US Supreme Court Justice Neil Gorsuch, another self-proclaimed originalist and Trump appointee, argues, “Originalism is a theory focused on process, not on substance… 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.”

Defending the legal theory, the late Justice Scalia had famously said, “We are governed by laws, not by the intentions of legislators.”

‘Living constitution’ theory

The legal philosophy which is said to be the opposite of originalism is ‘living constitution’ or ‘modernism’. This theory, espoused by likes of the late Justice Ginsburg, believes that the constitution should be updated with times to encompass changing societal needs.

Originalists consider this theory as judicial overreach, and criticise living constitution jurists as “activist judges”. Justice Gorsuch says in the TIME piece, “… 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.”

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