Despite trepidation about the nominee and the nomination process among Democrats, Judge Amy Coney Barrett’s Supreme Court confirmation hearings will begin today.
As the proceedings progress, the media and talking heads/legal scholars will use a number of arcane legal terms to define the nominee, her judicial philosophy and the impact her presence will have on the Supreme Court and the nation.
Last week I began offering a glossary of those terms starting with the principle of “stare decisis.” Let’s continue by defining the following terms which relate to ways in which the Constitution may be interpreted.
And no, there won’t be a quiz about these terms:
- Living constitution
During the hearings, Judge Barrett will be described as an “originalist,” by friends and foes alike. When you understand what the designation means you’ll know why. Originalists like Judge Barrett and her mentor, the late Supreme Court Justice Antonin Scalia, believe the Constitution must be interpreted as it was written by the Founders and that its meaning can only be changed via the amendment process.
According to legal scholar William Baude, this legal philosophy asserts that “…the words in the Constitution have the same meaning over time, even if modern circumstances change, and even if we wish the words meant something else.”
In short, originalists believe the Constitution means today what James Madison and others said it meant back in the late 1700s and that it may only be altered via the amendment process. At this point, we should take note of the fact that Madison and his crew were all boys, all white, and that many owned slaves. America is a lot different now then it was when the Constitution was drafted, but that doesn’t matter to originalists.
In addition to being an originalist, Judge Barrett is also a “textualist.” According to Princeton professor Keith Whittington, textualists interpret laws “…based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, the problem it was intended to remedy or significant questions regarding the justice or rectitude of the law.”
For example, drafting errors in the Affordable Care Act have made it vulnerable to attack by textualists even though the authors of the legislation contend the bill as passed doesn’t accurately reflect their true intent. The textualist response is the legal equivalent of “tough noogies” — the law means what the text says. Period
Finally, some judges adhere to the “Living Constitution” doctrine which holds that the framers wanted their successors to consider nuance and context when interpreting the document. This doctrine served as the basis for “Roe v. Wade,” “Brown v. Board of Education,” “Obergefell v. Hodges” and other decisions that extended rights to Americans that were not expressly granted by the nation’s Founders more than 250 years ago.
Conservatives love originalists and textualists. Liberals embrace living constitutionalists.
The debate over which philosophy truly aligns with the intent of the founders will continue long after Judge Barrett is confirmed.
— Attorney David Betras, a senior partner at Betras, Kopp & Harshman LLC., directs the firm’s non-litigation activities and practices criminal defense law in both the state and federal courts. He has practiced law for 35 years. Have a legal question you'd like answered here? Send it to firstname.lastname@example.org.