Does an originalist interpretation of the Constitution require judges to ask what James Madison would do in a given situation?
Judge Amy Coney Barrett (’97 J.D.) answered this question with a resounding “no” in a lecture hosted Wednesday night by the Notre Dame Club of St. Joseph Valley.
“Many people think an originalist approach requires us to ask, ‘What would James Madison do?’ if we were confronted with some type of constitutional problem. … That’s not what originalism means,” she said.
Barrett, who currently serves on the U.S. Court of Appeals for the Seventh Circuit, distinguished between two types of originalism: original intent originalism and original public meaning originalism.
The former emerged during the 1980s under Justice Earl Warren’s and Justice Warren Burger’s Supreme Courts, Barrett said. It arose as a response to living constitutionalism, a way of interpreting the Constitution that defended controversial decisions such as Miranda vs. Arizona and Roe vs. Wade.
“Everyone agreed at the time that decisions like this aren’t textually compelled,” Barrett said. “There’s nothing in the text of the Constitution itself. … At the time, living constitutionalism was a sophisticated justification. Courts ought to interpret with an eye towards current norms, push the country forward with an evolving idea of norms.”
Meanwhile, original intent originalism suggested that the Constitution should be interpreted in exactly the same manner as its framers, Barrett said.
“Original intent originalism was really an [exercise] of trying to think your way into the minds of the framers and say ‘How would James Madison approach this problem?’ or ‘How would Thomas Jefferson approach this problem?’” she said.
However, Barrett said, there are several objections to this framework — there were several framers of the Constitution, and it is not possible to ever fully guess at their thoughts. Furthermore, Barrett said, one might object to this form of originalism on the grounds that the Constitution should not be bound by the “private intentions” of the framers.
Original public meaning originalism counters some of these issues by interpreting the Constitution according to what its framers said, rather than thought, Barrett said.
“The text of the Constitution controls, so the meaning of the words at the time they were ratified is the same as their meaning today,” she said.
This form of originalism distinguishes between interpretation of the Constitution — looking at the meaning of the Constitution — and construction, or putting the Constitution into practice, Barrett said.
“Making this distinction between interpretation and construction has had the effect of making originalism a pretty wide tent,” she said. “Now, in its most recent and modern iteration, originalism has attracted people of all different political stripes.”
While some might criticize originalism by saying it allows “the dead hand of the past” to influence current interpretations, Barrett said striking down judicial decisions for this reason would be analogous to reversing laws once the people who enacted them died.
“Nobody would say that for example, Miranda vs. Arizona is no longer good law simply because the justices who participated in that decision are dead,” she said.
Additionally, Barrett said, judges retain the power to reverse decisions when needed.
“What makes [judicial decisions] democratically legitimate is ... we always have the power to amend the Constitution,” she said. “Judges have the power to reverse judicial decisions when they have the need to.”
Barrett also addressed the criticism that originalism created an inflexible interpretation of the Constitution, saying originalism often offered guiding principles, rather than direct answers to individual judicial questions.
“In some respects we should look at that [inflexibility] as a good thing. … It’s a floor, we don’t want to go below this,” she said. “We don’t want an entirely flexible Constitution because then we would have no constitutional protection at all.”
