Originalism's value isn't just in its dedication to old texts, but in how it honors the democratic will of the people.
The final Senate vote on the confirmation of Judge Amy Coney Barrett to the U.S. Supreme Court is today. We should put aside, even for just a moment, discussions about what this means for the judicial-nomination process, the filibuster, and the election. It’s worth exploring how a Justice Barrett would influence American policy-making. The reason I’m so strongly in favor of her confirmation is because, based on her testimony and previous work, Barrett may very well help restore key aspects of American governing.
I believe the most pressing problem in policy-making today, and the issue at the root of much of our political dysfunction, is that we’ve forsaken self-government—rule of, by, and for the people. Our Constitution creates a republic, a nation where the federal government and state governments are run by officials elected by our citizens. Various provisions, like the separation of powers, slow the policy-making process so that reasoned, stable majorities rule (instead of rash, temporary factions). And individual rights and enumerated powers set limits on what governments can do. Otherwise, our representatives—constantly subject to democratic dismissal from office—are empowered to decide what statutes and ordinances are passed, how dollars are spent, and so on.
Self-government is indispensable, especially in a diverse nation of free-thinking people. It gives individuals a sense of agency in public life. It allows different communities to live differently, based on their particular histories and priorities. Since self-rule makes us masters of our own fates, our energies are directed to real problems and practical solutions instead of abstract concepts and conspiracy theories about distant, invisible forces. The deliberative democratic process also makes us better citizens by fostering civic virtues like public participation, civility, accommodation, and compromise.
But in recent decades a number of trends have undermined self-government. The judiciary has invented new rights under the Constitution and statutes and then used them to invalidate democratically produced policies. This devalues the will of the people in at least two ways: It disregards what voters and their representatives actually did when ratifying the Constitution or passing a law, and it reduces the space for today’s voters and representatives to govern. We also have an overactive administrative state, through which unelected officials in executive-branch bodies make more and more rules with the force of law. This shifts policy-making from a transparent process of debate and compromise led by elected representatives in a legislature to a veiled process of applying “expertise” led by technocrats in agencies.
The list goes on: too many executive orders; too little actual work in Congress; too much deference to detached “data-based decision-making” and the nudging of behavioral science; legal theories that would lead to the invalidation of more laws or read partisan preferences into the Constitution. We are in an era when too many leaders and institutions show insufficient respect for self-government. A few years ago, there was much hand-wringing from older Americans when surveys showed that younger generations questioned the value of democracy. But, in truth, they could’ve responded to their elders like the teen from the 1980s public service announcement whose dad caught him with drugs: “I learned it by watching you.”
America must recover the connected beliefs that the most important societal decisions should be made by the people, that decentralized decision-making enables American pluralism to work, and that our Constitution assigns law-making (and therefore politics) to the legislative branch. Only then can citizens and their communities feel like they are in control; only then can policy disagreements be resolved through public deliberation and compromise; and only then can we diminish the role of the courts in public life and return to civil Supreme Court confirmations.
Judge Barrett’s commitment to originalism, textualism, and following the will of the people is exactly what we need. As the sixth member of a bloc mostly committed to this approach, she would enable the Supreme Court to help get self-government back on track.
Much attention has been paid to Barrett’s use of “originalism” and “textualism” as means of interpretation. As she explained in answers to senators’ questions, these tools direct judges to apply the public meaning of words as understood when the document in question was passed or ratified. This prioritizes the actual language adopted and prevents judges from infusing their policy preferences into law. “A judge must apply the law as written, not as the judge wishes it were,” she explained. In some cases, this may lead to greater individual liberty, for example more protection for political speech and religious freedom or from searches and seizures. In other cases, it will make more room for legislative decision-making.
Some believe in originalism and textualism because these are means of guaranteeing clarity and consistency: Citizens need to know what the law is, so courts should articulate what the text meant when it was authored and then adhere to that meaning until it is changed by lawmakers. But that understanding separates text from the people and process that produced it. That is, one could be an originalist or textualist of laws written by computers or that fall from the sky. But in America, positive law is produced by elected representatives of the people. That means a fuller understanding of originalism and textualism requires an appreciation not just of cold words on a page but of self-government.
And Barrett appears to appreciate such self-government. In an answer to Senator Mike Lee, the Utah Republican, Barrett explained why judges should place so much emphasis on the actual words in a text. “They derive their democratic legitimacy from the fact that they have been enacted, in the case of statutes, by the people’s representatives, or in the case of the Constitution, through the Constitution-making process.” Similarly, in her opening statement to the Judiciary Committee, Barrett said, “The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People.” Answering a question by Nebraska Sen. Ben Sasse about why the meaning of a law doesn’t change over time, she explainedthat it is not the job of judges to update laws. The meaning stays the same until it is lawfully changed by the people’s representatives following democratic processes. Implied in Barrett’s White House statement that “Judges are not policymakers” is the self-government maxim, “The people and their representatives are.”
Importantly, Barrett made clear that a judge can claim that she is deferring to the will of the people when she is, in fact, sneaking in her personal views. There are a range of interpretive methods—“intentionalism,” “purposivism,” “pragmatism,” “structuralism,” “common good constitutionalism,” “Natural Law theory”—that give the judge more leeway if she purports to know, for instance, what the entire structure of the Constitution meant to accomplish, what the legislature’s real intention was, what outcomes the political branches hoped to realize, or what the morally or practically proper answer is. In fact, some right-of-center scholars and observers (of libertarian, traditionalist, or faith-based bents) would welcome more active, or “engaged,” judges.
But such approaches can elevate the jurist’s subjective judgments and preferences above the words that elected representatives agreed to. In various answers to Sens. Ernst, Kennedy, and Lee, Barrett explained that she would rely on legislative and constitutional text not purpose or intent. Similarly, in a journal article on the tension between originalism and precedent, she wrote that “originalism prioritizes what we might think of as the original precedent: the contemporaneously expressed understanding of ratified text.” Though this doesn’t tell us how she’d navigate the tension in any particular case, this articulation has a decidedly pro-self-government tinge: Originalists prize the will of the people, as expressed by agreed-upon statutory or constitutional language, above judge-created law.
The philosophies at odds in Bostock (2020) offer a way to think about Barrett’s potential approach on the Court. The majority extended the prohibition on sex-based discrimination in Title VII of the Civil Rights Act of 1964 to cover gay and transgender individuals. The majority leaned heavily on textualism, while the dissenters leaned on textualism and self-government. The majority opinion, authored by Justice Neil Gorsuch, argued that a “straightforward application” of the act’s terms’ “ordinary public meaning at the time of their enactment” encompasses sexual orientation and sexual identity regardless of whether the law’s authors expected them to do so. “Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result […] But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” Because the text and its implications are clear, Gorsuch said the Court need go no farther. “When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest.”
Justice Samuel Alito denies the majority engaged in textualism. His dissent begins, “There is only one word for what the Court has done today: legislation.” Later, he wrote, “The Court’s arguments are squarely contrary to the statutory text,” a conclusion supported, he argues, by a range of contemporary and subsequent sources: Sexual orientation and identity aren’t listed in the law; the voters and their representatives in 1964 didn’t understand “sex” to include those categories; for nearly 50 years, courts and the Equal Employment Opportunity Commission did not include these categories in sex discrimination; and Congress repeatedly considered but rejected amendments to the law that would include these categories. Emphasizing the importance of respecting the democratic will at the time of the law’s passage, Alito writes that the question is not whether such discrimination should be outlawed, “The question is whether Congress did that in 1964. It indisputably did not.” The dissent by Justice Brett Kavanaugh similarly accuses the Court of veering into legislating. He wrote, “we are judges, not Members of Congress” and that the majority engaged in “judicially rewriting Title VII.”
Which side in this internecine war of textualism would a Justice Barrett have joined? In a journal article, Professor Barrett criticized Chief Justice John Roberts’ opinion in NFIB v. Sebelius for pushing the text of the Affordable Care Act “beyond its plausible meaning,” essentially rewriting the law to save it. This view and her commitment to having the people and their representatives update laws (instead of courts) suggest she might have been with the dissenters. Judges should begin and end with text, but they should not adjust its meaning when that’s the job of a democratic process. But in the same article she wrote “that deference to a democratic majority should not supersede a judge’s duty to apply clear text […] for a judge who adopts an interpretation inconsistent with the text fails to enforce the statute that commanded majority support.” So perhaps she would’ve joined the Gorsuch majority, seeing the text as clear and believing that an expanded interpretation would be the best way to keep faith with the people and their representatives.
Though we don’t have an answer, what seems to be clear—and what is encouraging—is that Barrett’s reasoning would take place in this realm of textualism and self-government. We would not need to worry about a Justice Barrett shoehorning her views into law or updating statutes to fit current sensibilities. She would, it appears, respect what the democratic process produced and then apply the text as the people at the time of the document’s passage understood it.
In his famous dissent in Casey, Justice Antonin Scalia pointed out that when the Court departs from text and pushes its own value judgments, our system of government is distorted. Instead of political fights taking place in legislatures, they migrate into the judiciary. Then, predictably, judicial confirmations become radioactive political fights.
Judge Barrett clerked for Justice Scalia, and she has said that she shares his philosophy. That may well mean not just a commitment to originalism and textualism, but, more broadly, a recognition that the success of our constitutional arrangements depends on the Court’s enforcement of rules related to those arrangements; for example, ours is a democratic republic, the people and their representatives rule, individual liberties must be jealously guarded, lawmaking happens in the legislature, politics should stay in the political branches, the judiciary applies the clear meaning of the constitution and statutes.
So many of our political and policy problems flow from our forgetting that the people are sovereign. Although our constitutional design limits how quickly and how expansively our governments can act, self-government is the foundation. The Court has a great deal of work ahead if it is to both better police itself and restore the balance of power among the branches of government and between Uncle Sam and the states. Regardless of whether it is dealing with the administrative state, abortion, the 10th Amendment, voting rights, religious liberty, or something else, the Court will be better for having a Justice Barrett among its members.
This piece originally appeared at The Dispatch
Photo by Shawn Thew-Pool/Getty Images