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10/22/2020

Lawrence Solum on Judge Barrett and Originalism
Michael Ramsey

In the Los Angeles Times, Lawrence Solum (Virginia/Legal Theory Blog): Judge Barrett is an originalist. Should we be afraid?  From the introduction: 

Originalism, the judicial philosophy of Supreme Court nominee Amy Coney Barrett, and her mentor, the late Justice Antonin Scalia, is once again the subject of intense interest and public debate.

Originalists believe that judges are bound by the constitutional text and that its words should be read as the public would have understood them at the time each provision was written.

Why would anyone object to this common-sense idea?

And on some key points: 

One worry is that originalist justices will overrule modern decisions that Americans hold dear.

One such case is Brown vs. Board of Education, the landmark Supreme Court case that struck down racial segregation. But originalism not only supports the ruling in Brown; an originalist Supreme Court would never have propagated the separate but equal doctrine in the first place.

...

Another worry is based on the false assumption that originalists want the world to stay the same as it was in 1787 and that they would ignore the words of the Constitution, asking instead, “What would James Madison do?”

This misunderstanding leads to truly silly arguments. Is the 2nd Amendment restricted to muskets? No, because the word “arms” includes all weapons that can be carried, including modern rifles and pistols. Would the 4th Amendment prohibition on “unreasonable searches” allow the government to send in drones and robots to search your home? No, the word “search” includes robot searches, drone searches, and other kinds of searches we cannot yet imagine.

Originalists believe that judges are bound by the constitutional text, which can be applied to contemporary circumstances in ways that James Madison could not have foreseen.

In conclusion:

Two hundred and forty years ago John Adams wrote of the importance of “a government of laws and not of men.” This ideal is not some musty platitude whose time has passed. If the events of recent years show anything, it is that we should fear the arbitrary rule of individuals, who do what they want and not what the law requires. The core of originalism is the rule of law. And that is not something we should fear.