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.