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THERE HAS BEEN much discussion recently about originalism in its interpretation of the U.S. Constitution.
Judge Amy Coney Barrett argued “that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my policy views into it.”
There are logical weaknesses in this argument, one might almost say hypocrisy, as offered in two recent views. A satirical one is offered by journalist and former evening news anchor Dan Rather. Another more extensive view comes from Jamelle Bouie, opinion columnist, The New York Times.
Here, in Parts 1 and 2 today and tomorrow, are tidbits gleaned from each of these, together with my usual Internet sleuthing.
Dan Rather’s Satirical Twitter. On October 14, 2020, Rather tweeted, “If you want to be an ‘originalist’ in law, maybe you should go all the way. Cooking on a hearth. Leeches for medicine. An old mule for transportation. Or maybe you can recognize that the world changes.”
Our Founding Fathers argued about many fine points of the U.S. Constitution. In ratifying the 1787 Constitution, though, their phrase “all men are created equal” meant “all white men owning property are created equal.”
Jamelle Bouie’s Question. In The New York Times, October 16, 2020, Jamelle Bouie asked, “Which Constitution is Amy Coney Barrett Talking About?”
Bouie wasn’t being facetious.
An Evolving Document. Let’s hold Judge Barrett to her word about “at the time people ratified it.” That is, the original Constitution completed ratification on June 21, 1788, with later amendments becoming law through subsequent ratification.
Article 5 of the Constitution allows amendments proposed by either a two-thirds vote of the Congress or a national convention of two-thirds of the states. Proposals are then subject to ratification by either three-fourths of the state legislature or by state conventions in three-fourths of the states.
Over U.S. history, 33 amendments have been proposed; 27 have had successful ratification.
Familiar Amendments. Most familiar are the Bill of Rights, the first ten amendments, ratified on December 15, 1791. Later, the Twelfth Amendment, for example, revised presidential elections in 1803; previously, the elected vice-president was the runner-up in the voting.
Tomorrow in Part 2, we’ll identify other ratified portions of the Constitution and how they might fit into an originalist’s thinking. Columnist Bouie emphasizes the importance of an evolving Constitution and evolving law. ds
© Dennis Simanaitis, SimanaitisSays.com, 2020
Erwin Chemerinsky, dean of the law school at the University of California, Berkeley, offers “Amy Coney Barrett’s Originalism Threatens Our Freedoms,” in The New York Time. Read it at https://www.nytimes.com/2020/10/21/opinion/supreme-court-amy-coney-barrett.html.
Isn’t it great that we live in a country where widely divergent views can be expressed without consequence to life or liberty.