October 26, 2020

Limited Government

What is Originalism?

By: Ericka Andersen

Since the nomination of Judge Amy Coney Barrett to the Supreme Court, there’s been a lot of conversation surrounding the meaning of how she interprets the Constitution. Barrett is an Originalist, but many people aren’t clear on what that, or other philosophies, mean.

The legal philosophy of Originalism means that the U.S. Constitution is interpreted as it was originally written at the time. It holds that the Framers wrote the Constitution with the knowledge that it would and could be used in its original meaning throughout the years. Sometimes also called “textualism,” another way to put it is this: The text of the Constitution today means exactly what it did when first written.

As Judge Barrett herself has explained, the Constitution’s “meaning doesn’t change over time,” and Originalism simply means  the Court shouldn’t  “update it or infuse (their) own policy views into it.”

Though Barrett and Justices like her mentor, Antonin Scalia, are known as conservative Justices, Originalism does not mean their decisions always result in policies favorable to conservative ideology. It is merely a commitment to what the Constitution says, and may result in a ruling that doesn’t align with the political ideology of the judge. It is about the history and the results, not the intent of an unelected Judge.

Some hear “Originalism” and have interpreted it to mean Barrett believes everything in the original Constitution was perfect. But at the time it was written, women weren’t afforded the right to vote and slaves were counted as 3/5ths of a person, for example. Surely she doesn’t believe those things should stand — and she doesn’t.

When Americans see something in need of changing, they have the power to make it happen through a Constitutional amendment — which is then interpreted by all Supreme Court Judges as if it were part of the original document in future rulings. This was the case with the 13th and 19th Amendments, which abolished slavery and gave women the right to vote, respectively.

Constitutional change through the amendment process, not through judicial activism, is by design. Amendments have been added at various times throughout history and the Constitution certainly doesn’t look the way it did when it was first written.

Many see Originalism as the *only* right way to interpret, but liberal judges often view the Constitution as a living document, one that can change over time based on new circumstances and cultural changes. The concept of “living Constitutionalism” is confusing because the Constitution changes via amendment in both Originalist and Living systems. Living Constitutionalists, however, believe Judicial rulings can be part of making those changes, rather than exclusively Constitutional amendments. This view turns our nation’s founding documents more into suggestions rather than foundational texts.

So while the media has made a big deal about Barrett’s “Originalist” approach, it’s actually a common, reliable way to interpret the Constitution. It checks the biases of the Judge and lends the power to the American people rather than the Judges in charge of fair ruling — not judicial activism.