Kevin Tobia, an assistant professor of law at Georgetown Law Center, wrote in Salon that Amy Coney Barrett’s “originalist” interpretation of law is incoherent.
Tobia writes:
Many fear that Amy Coney Barrett’s Supreme Court confirmation will erode the established rights of women and LGBTQ+ persons, given Barrett’s private convictions. At last week’s hearings before the Senate Judiciary Committee, Barrett responded clearly: “A judge must apply the law as written, not as the judge wishes it were.” Barrett is an originalist and textualist, who prioritizes “what people understood words to mean at the time that the law was enacted.” In pointing outward to the people, originalism conveys an alluring humility. Originalism is not personal; its conclusions reflect the objective fact of “public meaning.”
But are originalists right about the facts? I ran experiments to test whether originalism’s tools actually reflect public meaning. The results are surprising and troubling. In a forthcoming article in the Harvard Law Review, I found that the tools originalists rely upon support false conclusions about public meaning — and often conflict with each other. Until originalists like Barrett articulate better methods, Americans have no good reason to believe the theory is succeeding, even on its own terms.
In historical interpretation, originalists rely on tools like dictionary definitions: How was the contested term defined? They also rely on patterns of language usage: What was the most common way to use the term? A “big data” version of this approach called legal corpus linguistics has gained popularity.
I tested whether these tools actually reflect public meaning today, with a simple experiment. Consider a well-known example from legal philosophy: What is the meaning of the term “vehicle”? Three different groups participated in an experiment. The first made judgments about vehicles (e.g., “Is an airplane a vehicle: Yes or no?”). The second made judgments equipped with a dictionary definition of “vehicle” and the third with data from legal corpus linguistics (e.g., data about how the word “vehicle” is most commonly used).
Those groups reached radically different conclusions. For example, about 50% of people today say that a canoe is a vehicle. Yet nearly all participants using a dictionary definition reached that judgment (95%), while nearly all the participants using the corpus linguistics data reached the opposite judgment (only 10% agreed). Similar divergences arose across many different examples, and across groups of ordinary Americans, law school students and United States judges...
A broader problem for originalism concerns the concept of “public meaning” itself. If originalists can identify how the public understood our Constitution in 1787, surely they can identify the “public meaning” of very simple terms today. Justice Brett Kavanaugh, also an originalist, invites us in a recent opinion to consider again the meaning of “vehicle.” Clearly a car is a vehicle, but what about a canoe, an airplane or a baby stroller? Kavanaugh provides straightforward answers: “the word ‘vehicle,’ in its ordinary meaning does not encompass baby strollers.”
Does the American public agree? About 75% of Americans agree that baby strollers are not “vehicles.” But 25% disagree. Other cases are even more difficult. People are divided 70-30 concerning whether airplanes are vehicles, divided 60-40 on bicycles and divided 50-50 on canoes. It’s not obvious what originalists should make of these facts. Is “public meaning” the same as “75% meaning” or “50% meaning”?
What does the Constitution say about computers, the Internet, and data privacy? What does it say about equal rights for African Americans, women, and gay people? What does it say about corporations and their “rights”? What does it say about in vitro fertilization (which Barrett has called “manslaughter”)? These “what ifs” can go on and on and on because the white men who wrote the Constitution lived in a very different world from 2020. They wrote a Constitution for their time and laid out general principles for the future, which subsequent Courts have adjusted to meet the issues of changing times.
It seems like the height of hubris to try to think as if he (certainly not she) could imagine what was in the minds of the Founders.
Of one thing we can be sure: The Founders did not imagine women sitting on the Supreme Court or voting in elections or serving on juries. If they wanted equality between men and women, they would have said so. They didn’t. They would be appalled that Amy Coney Barrett is joining two other women–Justice Sonia Sotomayor and Justice Elena Kagan–on the Supreme Court. A true originalist would immediately recognize that the Founders did not envision women on the Court. And Judge Barrett–if she is true to her philosophy–would decline a seat on the Court.
If “originalism” is even a thing, Barrett wouldn’t be considered or eligible.
Amy, Comey, Barr, Etc.
“A true originalist would immediately recognize that the Founders did not envision women on the Court. And Judge Barrett–if she is true to her philosophy–would decline a seat on the Court.”
And ACB would have to acknowledge that her adopted, black children only count as 3/5 of a human being, and her child with Down’s Syndrome would likely have been left to starve and die because he was “different” and a burden upon society. These kinds of people are crazy nut jobs. This just goes to show that an education really can’t make one a great human being….it’s what one does with their great education that makes them a great human being. She’s likely a done deal (unless a few Senators grow a pair!) and we must wait until she shows her original self and call her out on her own hypocrisy. We could get very lucky if Biden wins AND a couple of the Good old Boys sitting on SCOTUS want a few years to enjoy retirement?
Did she get a great education? That’s what Trump said and he lies. After her college time, she clerked for Scalia.
Agree with this completely. The whole concept/ideology of originalism is incoherent, regardless of who spews it. It is legal sophistry in a well-ironed robe.
Well put, Greg!
If a right wing Republican group spent a lot of money pushing the idea that the earth was flat, and cowed the major media institutions and their lazy reporters into believing that if they didn’t report that the earth was flat, it was because they were “biased”, the NYT would report that there is a debate between the earth being flat and the earth being round and both sides offer up credible arguments and all the massive facts about why the earth is round and not flat would be simply dismissed as “opinions”.
That is what happened with the “originalists”. It is absurd that Judge Amy Coney Barrett was allowed to pronounce that she is an originalist with Scalia being her hero, and that she will decide cases independently! Both cannot be true. But that didn’t stop the NYT from noting how brilliant her legal arguments were. Because the propaganda now rules in this country.
“originalist” is just another name for the John Birch Society beliefs, except that they are given enormous legitimacy despite their arguments being as nonsensical as that offered by the John Birch Society.
“We in power – especially rich white men – will determine what the original intent of the Constitution is, and our judges will follow our lead or be cast out of our favor.” That is originalism.
Let me add a few words…”Because rich (elite) white men wrote the Constitution, rich white men will determine…”
Originalism is just a con, a cover, a fig leaf for right wing nutterism. The same can be said for the conservative bill of BS: limited government, lower taxes and personal responsibility which is (those 3 things taken as a whole) a verbal smoke screen for greed and giving all the power to the rich and the connected at the expense of the 99%. Trump is deep into red baiting and McCarthyism by accusing every Democrat in sight of being a socialist, a commie or extreme leftist Anti-Fa revolutionary.
The people originally in favor of limited government, lower taxes, and personal responsibility were not greedy corporate toadies, nor are many of the people who still hold some version of these views. I agree that the ideas have been warped to meet the needs of the rich and powerful, but we have to ask what these ideas mean in the context/understanding of the every day Joe. It will be very difficult to bring the country together if we assume that anyone who does not espouse the same ideas is corrupt and greedy. I was pleased to see the ad put out by competing candidates in Utah saying that they are not enemies; they just have different ideas and will work together after the election, no matter who wins.
The translation of limited government-lower taxes-personal responsibility from the GOP of today is: kill off Social Security, Medicare, Medicaid, the ACA, food stamps, unemployment insurance, or any social program. Drown them all in a bath tub. When people like Grover Norquist, Ted Cruz, Ron Johnson, McConnell, Palin, Lindsey Graham, Paul Ryan, Pence, Liz Cheney, Steve Scalise, Steve King, Kevin McCarthy, Virgina Foxx, Louie Gohmert, Tom Cotton, Dan Crenshaw, etc, ad very nauseam, mouth the bromides of limited government-lower taxes-personal responsibility, they are not sincere and their intent in using those words is very sinister and nasty.
The GOP is no longer a rational normal political party, it is pretty much a fascist gang of right wing ideologues. Obama tried to reach across the aisle and engage in bipartisanship and he had his arms ripped off. Merrick Garland and many of Obama’s choices for the lower courts were stymied, stalled and were never seated.
Well stated and supported, Joe. The Republican Party has been taken over by right wing extremists. It is sad that the loyal, less discerning and less informed tribal Republicans still show up for them, although I have read that some of the smarter elderly will vote for Biden as Social Security and Medicare are at stake.
I don’t think anything I said disagrees with what you just said. Those in power in the Republican party have pretty much dismantled any claim to principled leadership. My point is they do NOT represent all people who identify themselves as Republicans.
Joe Biden and Kamala Harris recognize the insanity of encouraging division. They know that shouting schoolyard curses at each other is not going to lead to healing. Their example might help to guide the rest of us toward “cooling it” a bit. I really don’t want the future of this country determined by extremists on either end of the political spectrum because they don’t hear or listen to anyone but themselves.
Don’t take anything I have said personally. There is nothing you have said that I haven’t at least thought myself. I am trying to think beyond the rhetoric back to sanity. Of course, all of it depends on whether Trumps loses the election and how many of his sycophants go with him.
Spedukatr: “I am trying to think beyond the rhetoric back to sanity.”
I read you. I would like to return to the sanity of the 1970’s. It was a time when– tho raised Rep, then radicalized by the late ’60’s– I found as many Reps as Dems to admire in the ’76 primaries. It was a time when I registered Dem (as opposed to independent) only because I lived in NYC, so wanted a voice choosing among all-Dem contenders for every political office. I was neither: looked for fiscal conservatism married with strong public-good values. Back then you could find candidates of either party who met the criteria.
The change came in the ’80’s. Reagan was so far right, & surrounded by neo-con advisers that were even further right– Dems responded by trending right themselves, abandoning the labor movement [scared off, no more ideas than Reps on what to do about globalism/ offshoring], buying into the faux new ‘neoliberal’ [Third Way] position that was simply neo-con lite. I remember thinking WClinton was the cat’s pajamas, but during his 8 yrs finding all my markers of QOL [cost of housing/ health-ins/ college for kids] kept escalating way faster than salaries, just as they had done under Reagan & Bush Sr. Why? Because neolib policies = necon policies.
Yup. My experience as well.
Just to reiterate speduktr: “The people originally in favor of limited government, lower taxes, and personal responsibility were not greedy corporate toadies, nor are many of the people who still hold some version of these views.”
People of my age were raised at the precise point [’60’s] when the burden of taxes began to shift from highest earners onto upper-middle & middle-class earners. Loopholes began to open for them and shut for us. During the ’60’s, my parents’ 2-man [mom&pop] family biz was audited twice, because IRS had decided to crack down on small-time contractors while allowing high-flyers to park their assets elsewhere. Simultaneously, taxes were rising precipitously to support LBJ’s “Great Society” & the burgeoning VNWar…
Allowing Barrett, or any one of the group calling themselves “originalists” to get away with a label that is not true without philosophical challenge is irresponsible. This group no more deserves to suggest the original intent of the constitution than any other interpretation. Their term makes it look like they are strict followers when time after time it is shown that they are just using the term to sound like they are one thing when they are really another.
These justices are placed on the court to rule in favor of a particular group of interests rather than the interests of the great mass of he people. They consistently rule against regulation of large business, in favor of restrictions on individual rights, and in favor of the incestuous relationship beaten church and state. If this latter example does not convince that the claim of originalist is poppycock, nothing will.
“Their term [“originalists”] makes it look like they are strict followers when time after time it is shown that they are just using the term to sound like they are one thing when they are really another.”
What is “the one thing” and what “another”?
The “one thing” is the sales pitch: “We’re here to restore original intent of the Constitution.” As opposed to what? The Constitution as applied for 200+ yrs to evolving society of those governed? Just chuck evolution/ turn the clock back & stop it at 1789?
“Another” being the political agenda. “Originalists” cloak themselves in 18thC garb, but the agenda is to dump the New Deal [circa 1930’s]. I.e., let the Gilded Age return & reign going forward.
So that is my major concern: their resistance to placing restrictions on large businesses. You can get away w/that s***, citizens pay no attention &/or still buy into “trickle-down.” Church-state blurring is part & parcel of that, at least as regards school-funding: it’s pro-privatization, which is the same thing – sold as QOL [choice] & people will keep buying into it until their wallets are empty, just as w/ all pro-biz rulings. I’m less concerned w/ social issues like abortion, birth-control, gay marriage: i suspect SCOTUS is canny enough to know how far they can push the envelope w/o inciting major public backlash.
This is a great post on the meanings of words and futility of discerning some “original” meanings that make sense for the 21st century. Scalia spawned a myth that cannot withstand even a rudimentary examination of what language can mean.
Bravo, Professor Tobia! Brilliantly argued!!!
Beer as a Vehicle
Beer transports from A to B
Takes you where you want to be
Brett comports himself with glee
Wishes ride was always free
Brett K, of course.
I must admit that I have used beer to transport myself on more than one occasion.
Like Brett, I like beer.
But that is probably where the similarity ends
“When I use a word, like vehicle” Originalist Shmidginalist said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
Originalism
Here is a clue
From original view:
Tippecanoe
And Tyler too
Who were the two?
And what did they do?
Supreme Court Justuses
In Justus we believe
Cuz Justus is our right
And Justus is indeed
The reason that we fight
You’re “on a roll.” I wonder if you are a vehicle.
Vehicular Poeticide
A vehicle for mockery
A vehicle for rhyme
For dickory and dockery
And learning ’bout the time
A vehicle for water
A vehicle for land
For doing watty otter
And to flay Ayn Rand
A vehicle for nonsense
A vehicle for sense
To insense and to incense
And somewhere ages hence
Now I will transport myself with a beer
:0)
Incobeersnt
Incobeerant
That was Brett
“I like beer and
Fat with bread”
Ok , I should prolly shut up.
I’m getting incobeerant and have not even had any beer.
“understood at the time the law was enacted”..BS…Republicans didn’t follow that when they gutted, through interpretation, the laws intended and written to protect labor unions (a result of the Great Depression). The GOP’s justices twisted “must bargain” so that it was meaningless.
If Barrett was anything other than a religion-addled stooge, she would have pulled out of the running this close to an election that may go Democratic.
She is willing to do anything — including perjury — to further her agenda.
I think she actually believes she is on a mission from God herself.
Religion is foremost to Barrett We don’t even know if the country’s best interests are on her list.
But, in D.C., the left is too scared to touch questions about religion. They know the knee-jerk tribalist response to questions, “you hate Catholics”.
I was raised a Catholic, so I feel qualified to criticize the Church and particularly extremist members thereof. And Crony Barrett is as extremist as they get.
She’s also very dishonest and deceptive.
Prolly going to Hell if there is one.
One thing I can say for sure: if there is a Heaven and Hell , I want to be going wherever folks like Crony Barrett are not.
It’s bad enough to have to listen to them for years on end here on Earth.
Poet-
It wasn’t your intent to deny others, not raised Catholic, the permission to criticize the politicking of the Catholic clergy and the Knights of Columbus, the world’s largest lay organization?
Of course not Linda
Non Catholics certainly have the right to criticize the church and it’s members.
But having been raised in the Catholic Church I feel especially qualified to criticize .😀
Its among the few things I am actually qualified to do.
By the way, every time I read a reference to “lay organizations”, “lay ministers”, “lay people” , “laymen” etc, I can’t help thinking of Bob Dylan’s song
Lay lady lay, lay across my big brass bed”
If laymen would get laid
Perhaps they would be happy
And never need get paid
Or ever feel quite crappy
Providence’s bishop who tweeted that Biden wasn’t Catholic continues to be dissatisfied with Pope Francis’ decisions, as are the USCCB’s favorite colonialists.
religion-addled: a great description
“the objective fact of ‘public meaning’,” give me a break. Read me any statement written carefully by a panel of well-educated leaders of their time to convey how a govt will be constructed. I’ll show it to 5 members of the public—let’s make them other well-educated citizens of that day [let alone this one]—and get 5 different interpretations. Tobia’s experiment is well-designed.
Judicial originalism (once again) brings CCSS-ELA’s stds & aligned assessments immediately to mind. Standards: “how to” read, write, comprehend/ analyze/ discuss text are as notoriously difficult to pin down as how to govern a nation. Assessments: even the most perspicacious test-designer will have a tough time coming up with a “standard-aligned” set of plausible choices among which will be found only one which is “right.”
Diane says of originalist judges, “It seems like the height of hubris to try to think as if [one] could imagine what was in the minds of the Founders.” Yet Coleman’s New-Criticism-based ELA standards barge right in, suggesting K12 readers posit the ‘apparent’ goals of authors [and assess their success or failure] by counting the number of repeated words, listing similes and metaphors, & otherwise trying to pin down the butterfly-creation, all the while excluding historical context, contemporary connections, and the very reaction of readers as irrelevant.
Take one para of the Constitution and try applying it to five different sets of case particulars brought before the judiciary: is the “right”/ “only” answer to be found easily in the para? Take your time: bring in dictionaries from the Founders’ era, ‘legal corpus linguistics’ applying linguistic theory to elucidate ‘ordinary meaning,’ etc. Throw out stare decisis: exclude previous SCOTUS decisions (because maybe they weren’t based on “what the Founders had in mind”) as irrelevant. Do all that and each case will still have to be slow-walked through clarifications and potential ramifications; decision will be arrived at only through deliberating over various judicial opinions– including those of 6 originalist judges—and hammering out a compromise.
Scary Decisis
Stare Decisis
Used to be
The principle of law
Scary Decisis
Now , we see,
To “stick it in your craw”
“Originalism” and “textualism” are both used to describe this bent. The former is more common in media, but I see the term “textualism” creeping into articles now. “Originalism” is plain. It says, “I want to turn the clock back.” “Textualism” is a wolf in sheep’s clothing. It says, “there’s only one truth– it’s in the words themselves, sans context– and we have a special, scientific sauce that translates them accurately to their… (oops) original meaning.
Regardless of terminology, this judicial theory is about turning the clock back. But to what?
I’m going to ignore arguments that suggest backers of originalist judges want to return us to the 18thC. My understanding of the impetus for this movement is as a reaction to “legislating from the bench”– an interpretation by conservatives of Warren [ & Burger?] court decisions. Key SCOTUS decisions of early-’50’s through early-’70’s were ahead of legislation in a sense: they reflected the direction of social consensus almost contemporaneously, which is rare for the court system. But that’s only because legislation was lagging social consensus by a couple of decades at that point. Read the decisions: SCOTUS was not making new law, just applying brilliantly-forward-looking Constitutional premises to cases set before them.
OTOH, I do not have a big problem w/conservatives applying brakes on the judicial system so as to get it more in synch w/ today’s social consensus. That SCOTUS veered ahead in ’60’s & ’70’s was a sign that the legislative branch was then out of synch, lagging far behind contemporary social realities of the time, which had shot ahead very quickly. Perhaps– in simply applying available Constitutional remedies for pressing contemporary social concerns– they got ahead of the consensus.
The originalist movement suggests that; it’s a backlash. They are saying, hey you’ve been ignoring a bunch of us [30%? The Trumpistas?]. These originalist-proponents/ voter-backers are part of a disappearing way of life. But they are still here, & must be represented. Their Tea-Party & libertarian congressional reps are on the wane; they are losing ground in the Rep party (in fact dragging it down to the point where their prez is pushing for expenditures & they’re digging their heels in).
There’s a silver lining to that dying rw-Rep fringe tail wagging the SCOTUS dog for decades to come. Congress will finally have to begin shouldering the legislative responsibility they’ve been pushing off onto exec & judicial branches for 30 yrs
Original Intent
If framers had intended
That blacks were really equal
They wouldn’t have invented
Their “blacks as 3/5ths people”
If framers had intended
That women get the vote
They would have just extended
The Bill of Rights to quote
If framers had intended
Intentions to be hard
They wouldn’t have amended
Their document at start*
*Bill of Rights
Amy Crony Barrett
A Tweetualist is she
Interpreting the tweets
Of Donald and the See
And various Saint Petes
Disturbing and fascinating- so many comments at the blog about People of Praise’ Barrett and indirectly, Leonard Leo and Paul Weyrich, but, complete avoidance of the Catholic connection, as if the commitments of the three to an ideology sprang out of nowhere.
Since blog commenters recognize evangelicals are wrong, I assume the commenters conclude fundamentalist Christians are listening to a different God than the conservative Catholic SCOTUS judges, the people who put them in power and, William Barr.
of course, the See is reference to the Holy See (the Pope), so my poem is aimed not just at People of Praise but at Papal of Praise (the head of the church).
Mine is a nondiscriminatory criticism.😀
And by the way, I left the Catholic Church long long ago, in a galaxy far far away, long before any of the sexual abuse by Priests came out.
And believe me, i don’t have any problem criticizing ANY church. With the exception of religions like Buddhism, Taoism and a few other mainly eastern religions, they all have their ” issues” in my view, not least of all perpetuating the ridiculous idea that they (members of their particular religion) are “God’s chosen ones” (and that everyone else is chopped liver?)
But I will also say that most of the Catholics that I know and have known have more of a live and let live attitude and are certainly not extremists like Crony Barrett.
When it comes the extremists, it really does not matter what the religion is.
Yes, Poet, I’ve noted over time you don’t fear religion as a discussion topic making you one of very few at the blog
I’m curious how many wins the Catholic hierarchy gets to have while handicapping its opponents by saying, “You can’t talk about religion while we provide all of the help we can to the GOP. You can’t talk about our politicking because our tent is large. Our tent has Dems. (Wink- the Dems don’t have the Church’s money to spend nor its pulpits from which to message and, we describe them as not being Catholic as in Kerry, Biden and Pelosi) ”
The wins and still counting
-Tax money for their schools
– Abortions curtailed
-Their employees exempted from civil rights employment law
-Exemption from providing insurance payments for birth control
– 5 SCOTUS justices and many federal judges delivered by Leonard Leo
-Cuts to social programs via their guys, Charles Koch and Paul Weyrich
– the American people at the mercy of predatory capitalism
– court decisions in Roe v. Wade and same sex marriage legitimacy in jeopardy
-an authoritarian and incompetent President who promotes himself as doing more for religion than any other president in history
This is sort of off topic but informative:
How to Stop Trump from Stealing the Election | Robert Reich
Oct 20, 2020
Former Secretary of Labor Robert Reich explains Trump’s plan to contest the election and steal a victory through the House of Representatives.
Trump signed an international anti-abortion declaration. Some of the countries signing on to the Geneva Consensus Declaration are authoritarian (Russia) and conservative. Developed nations in Western Europe and other countries signed a document opposing the Trump declaration.
From Axios, “Since 2016, Pres. Trump has taken steps to curtail abortion and restrict access to to contraception.”
The Trump action has nothing to do with religion which explains why Barrett wasn’t asked about her religion or about Leonard Leo and Neil Cockery’s decision to put someone of their same faith on SCOTUS. The American Catholic hierarchy has no involvement in the action. If religion was involved, which it wasn’t, the sole religious group involved would be evangelicals.
I can’t stand Senator Todd Young [R-IN].
……………………………………………..
Senator Todd Young
Fri, Oct 23, 8:50 PM (7 hours ago)
Dear Ms. Ring,
Sincerely,
Todd Young
United States Senator
Institute for Southern Studies • The Corporate Interests Backing Trump’s Latest Supreme Court Pick
One small example of your ignorance is that the term for “human” in days past was often just “man,” like “mankind” or “man vs. beast.”
Unfortunately for you, in order to understand an author’s intent or the written word itself, an honest and humble approach to any text is required.
Do you think that women (humans) were lawyers or judges or legislators or even voters when the Constitution was written?