Tag: constitutional originalist

Of Time, Bells & Meaning

By Stephen Macaulay

In 1787 Paul Revere opened a bell foundry in Boston. In addition to things like copper spikes and bolts that were used for shipbuilding, Revere cast his first bell in 1792. One of them was produced for the USS Constitution. During the War of 1812, the bell was put out of commission by a British ship, HMS Guerriere.

(For those of you who have forgotten their American history classes, the War of 1812 pitted the U.S. against the United Kingdom, which would seem unthinkable today as the U.K. is now one of our closest allies—well, given the way the current administration has treated our closest allies, maybe it isn’t so unthinkable. Anyway, during this war the U.K. and Native Americans were on the same side; the U.S. tried to get chunks of Canada; the Brits burned the White House. Again, much of this seems bizarre, but things were different 208 years ago. Hang on to that thought.)

While Revere’s bell foundry is somewhat obscure, it is worth noting that in 1787 the U.S. Constitution was signed.

According to the official White House website, “The founders also specified a process by which the Constitution may be amended, and since its ratification, the Constitution has been amended 27 times.”

Which is germane because it is clear from this that the founders didn’t think that what they had created was carved in stone tablets.

Even the White House understands that. Things change. Even words.

Judge Amy Coney Barrett has described herself as a “constitutional originalist” and that she takes a textualist approach to the law.

During the hearings for her appointment to the Supreme Court, Lindsay Graham, a former JAG lawyer (there is no evidence that he, like Harmon Rabb, suffers from night blindness, although he seems to be vexed by a tendency to behave as a presidential lickspittle), asked Judge Barrett what all that means in a way that could be understood.

She replied, "So in English, that means 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."

She added, "So that meaning doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it."

“The meaning doesn’t change over time.”

Really? 

So the words as written in 1787 have the same meaning as they do today? Back when Paul Revere was casting bells?

Let’s look at Article 1, Section 2, Clause 3, which is important vis-à-vis the recent decision regarding the U.S. census as this is where taking the census every 10 years came from:

“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.”

Note how there seems to be a randomized capitalization of words. Presumably were one to write that way on one a paper submitted to Judge Barrett when she was teaching they would have been in a World of Hurt because We don’t capitalize Nouns Nowadays. 

What’s more, there is the word “Persons” not “citizens” (or Citizens). There are Persons counted as fractions (or Fractions).

And meaning doesn’t change over time? 

Macaulay is a cultural commentator based in Detroit.

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Barrett is on Her Way to Senate Confirmation before the Election

By Todd Lassa 

Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., has scheduled the panel’s vote on the nomination of Judge Amy Coney Barrett to the U.S. Supreme Court for 1 p.m. Thursday, Oct. 22. The committee, comprising 13 Republicans and 10 Democrats, is considered a sure bet for approving Barrett, whose hearings with the panel concluded Wednesday.

The full Senate will vote to approve Barrett before the presidential election Nov. 3, Graham said. With just two Republican senators, Lisa Murkowski of Alaska and Susan Collins of Maine, having earlier opposed seating a replacement for the late Justice Ruth Bader Ginsburg before the election, the GOP still maintains a majority to approve President Trump’s nominee before the month is over. 

In her appearances before the Judiciary Committee Tuesday and Wednesday, Barrett carefully demurred on questions from Democratic members over concerns the nominee would rule with the court’s fortified conservative majority on potential disputes over the Nov. 3 election, as well as a case the Trump administration brought to the courts over the Affordable Care Act. For the longer term, Democrats interrogated the conservative Catholic mother of seven on her views regarding the 1973 Roe vs. Wade Supreme Court case that made abortion legal nationally. 

But on these and other matters, Barrett repeatedly declined to answer on potential future cases. 

In her opening remarks, Barrett described herself as an “originalist” in the mold of her mentor, Justice Antonin Scalia, whose replacement after his death early in 2016 resulted in Senate Majority Leader Mitch McConnell blocking President Obama’s nominee, Merrick Garland.

“That means 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,” she said.

Jeffrey Toobin, legal analyst for CNN and The New Yorker , told NPR Thursday morning that while several Supreme Court nominees have called themselves “originalists” since Scalia in 1982, “she may be the first one to actually mean it… .” 

Barrett told the committee, however, that she is not a carbon-copy of her mentor.

“If I were confirmed, you’d be getting Justice Barrett, not Justice Scalia …,” she said. “I share Justice Scalia’s philosophy, but I never said I agree with him on every issue.”

She did give Democrats some hope in not ruling out the question of recusal from votes on next month’s election and on the ACA ruling, but again declined to answer Sen. Kamala Harris’, D-Calif., question on whether she believes in climate change, because of the potential for a case coming up before the court. [Republicans had singled out Harris, the Democratic vice presidential candidate,  for what they considered aggressive questioning in Justice Brett Kavenaugh’s Judiciary committee hearing in 2018.]

Committee Republicans praised Barrett as a justice who will inspire young conservative women and girls the way Justice Ginsberg inspired young liberal women and girls.

“This is the first time we’ve nominated a woman who is unabashedly pro-life,” Graham said.

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