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Federal judge speaks about legal interpretation

| Tuesday, August 28, 2018

Judge Amy Coney Barrett defended the legal theories of originalism and textualism during a lecture Monday in the McCartan Courtroom in Eck Hall of Law. The talk was hosted by the Notre Dame student chapter of the Federalist Society, a nationwide libertarian and conservative organization that believes maintaining the separation of governmental powers is an important element of safeguarding American freedoms.

Mary Steurer | The Observer
Amy Coney Barrett, a Notre Dame law professor and judge on the U.S. Court of Appeals for the Seventh Circuit, lectures Monday at the Eck Hall of Law about the legal theories of originalism and textualism.

Barrett, who is a professor of law at Notre Dame and also concurrently serves as a judge on the United States Court of Appeals for the Seventh Circuit, introduced her lecture by clarifying the definition of originalism. She said the ideology first surfaced in the 1980s out of opposition to living constitutionalism, or the belief the Constitution should evolve over time to suit the needs of a modernizing society.

This brand of originalism focused particularly on a traditionalist view of the Constitution, she added.

“The idea was, ‘We’re going to interpret the Constitution as the Framers intended it to be,’” she said.

Barrett said current originalist thinking is more concerned with viewing the law through the eyes of the legislators who wrote it as well as the public it was created to serve.

“Originalism is about original public meaning,” she said.

The judge added that conducting historical research is often necessary for judges to be able to view the law through an originalist lens.

“You’re consulting those sources to get a feel for what people thought those words meant at the time,” Barrett said.

Barrett said textualism was similar to originalism, but instead of focusing on the interpretation of the entirety of the law, it pertains to the interpretation of individual statutes. Similar to originalism, textualism states that a statute ought to be implemented in a way that aligns with the meaning its writers intended, she said.

Barrett said textualist thinking is crucial because of the meticulous work that goes into creating a statute.

“The legislative process is messy,” she said. “The legislative process necessarily involves a lot of compromise.”

Since even minute details within a piece of legislation are written with purpose, she said, failure to practice textualism may lead to statutes being misapplied.

“If a judge parts from the text in the service of a more general purpose, that judge risks undoing the very compromise that made the enactment of the statute possible,” she said.

Barrett said some legal scholars oppose originalism because they argue it binds the United States into rigid compliance with old, outdated laws. Instead of viewing originalism as an indisputable set of rules, however, it ought to be seen as a guideline for modern legal interpretation, she said. For example, she said the Constitution’s relative brevity leaves some room for legislative evolution.

“The Constitution doesn’t purport to answer every question,” she said. “It sets the floor in many areas and permits the democratic process to build on top of that.”

Barrett said she believes practicing originalism is crucial to the survival of American democracy.

“The Constitution is like Odysseus tying himself to the mast and telling his crew, ‘When I hear the sirens, don’t untie me no matter what,’” she said. “The Constitution is designed to constrain us so that in moments where we are tempted to violate what we have committed to as a society, our deepest and best principles, like Odysseus tied to the mast, we have prevented ourselves from doing that.”

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About Mary Steurer

Mary is a senior sociology major and journalism minor from St. Louis. An aspiring religion reporter, Mary has spent the last year covering conversations about the Catholic Church sex abuse crisis at Notre Dame.

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