When I noted that just about everything good in American history is a product of the struggle of those left out by the original Constitution and even some of those the friggin' "founders" had in mind to benefit to gain the promises made in the first paragraph of the Declaration of Independence which were largely reneged on in the Constitution. I did not realize at the time how deadly serious that would become in the matter of the confirmation of Amy Coney Barrett to the Supreme Court, if she got there she would sanctimoniously overturn everything she could as not original enough for her bizarre elevation of he Constitution AS SHE WOULD READ IT even more so than the late and unlamented Antonin Scalia. I would not dare to come up with even one thing that could not be twisted by a well-trained liar-lawyer like Coney Barrett that would be safe from a court with her on it, especially considering what Republican-fascist Federalist Society court packing has already put on it.
For Scalia, the central virtue of originalism as a method of interpreting the Constitution is the way it limits judicial policymaking by unelected and tenured judges, thus honoring the basic democratic values of our constitutional tradition. By contrast, Barrett argues that it was a mistake for “early originalists” such as Scalia to stress the importance of judicial restraint. In her view, the original textual meaning of the Constitution is the law, period. Originalist judges have a sworn duty to uphold the law—even if that requires activist rulings, which may be deeply unpopular and invite frequent collisions with Congress and other democratically accountable legislative bodies.
In Barrett’s view, the original textual meaning of the Constitution is the law, period.
One clear example of this activist bent is Barrett’s rejection of the long-standing view that courts, in interpreting statutes, should view themselves as “faithful agents” of the relevant legislative bodies. Since lawmaking powers have been granted to legislatures, not courts, in our constitutional system, judges have been seen as properly playing a subordinate role in furthering and implementing the rule-making prerogatives of legislatures. Barrett once accepted this traditional view, but recently renounced it in a 2017 article “Congressional Insiders and Outsiders.” When interpreting statutes, judges should see themselves as “agents of the people,” not of legislatures, she argued. They can best carry out this populist role by enforcing statutory words in their “plain,” ordinary meanings, even when such meanings were clearly not intended or desired by the lawmakers, and even when such readings lead to apparent absurdities or gross injustices. (Why such absurdities and injustices are thought to be in the interest of “the people” is unexplained.) The upshot is that courts would see themselves not as partners and honest agents of legislative bodies, but as adversarial watchdogs. This is an activist conception of the judicial role, not a subordinate or passive one.
A second (and related) major point of disagreement between Barrett and Scalia is the importance of respecting prior court decisions that are mistaken according to public meaning originalists. Scalia frankly admitted that much of modern constitutional law cannot be squared with original meaning. He recognized, however, that it would be wholly unrealistic for judges to order a return to bygone days when women had few rights, states were free to ignore the Bill of Rights, the federal government had no obligation to treat all citizens equally, preteen children could be executed, and crimes could be punished by floggings and bodily mutilations. Respect for settled precedent, Scalia wrote in a book co-authored with legal wordsmith Bryan Garner, “has been part of our law since time immemorial, and we must bow to it.” Such respect isn’t part of public meaning originalism, Scalia admitted, but a “pragmatic exception” to it. As Scalia once quipped, “I am a textualist, I am an originalist, I am not a nut.”
Barrett’s attitude toward erroneous constitutional rulings is very different. She criticized Scalia for his “faint-hearted” originalism, and instead argued for a “fearless” originalism that recognizes no legal duty to preserve non-originalist precedent, no matter how entrenched or widely accepted it may be today. In a 2013 Texas Law Review article, she wrote, “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.” Though she conceded that prudent judges have many techniques they can and often should use to avoid head-on clashes between original meaning and deep-rooted precedent, she supports only a “weak” doctrine of adherence to precedent in constitutional cases. As Barrett explains in a 2016 article co-authored with John Copeland Nagle, mistaken constitutional rulings should at best be considered “provisional law” that can be overruled when the time is ripe. Even in cases of so-called erroneous “super precedents” that no sensible judge would now consider overruling, judges have no duty to treat such holdings as legally valid or binding. Their status as “law,” Barrett claims, is wholly derived from the widespread support they currently enjoy. Should that support ever significantly wane, judges should, if squarely confronted with the issue, boldly overrule the mistaken rulings.
First, notice Amy Coney Barrett's wish to separate the Courts from the judgement of legislatures, a part of government which has far more of a claim to legitimacy, being the product of the expressed will of We The People, the only possible source of a legitimate government. I have long pointed out the foolishness of allowing a 5-4 or 6-3 court the power to overturn duly adopted laws based on the often far longer study and thought and fact collecting of hundreds of members of the Congress. There is nothing that gave the Congressional Convention that wrote the Constitution any legitimacy EXCEPT TO THE EXTENT THAT THEY WERE SELECTED IN ACCORDANCE WITH THE WILL OF THE PEOPLE, either through election of them or their appointment by elected officials. THAT THE CONSTITUTION WAS ORIGINALLY ADOPTED ON THE VOTES OF LEGISLATURES MAKES CONEY BARRETT'S BLATANTLY DISHONEST POSITION ENTIRELY WRONG. That its adoption rested, among other things on Madison's reluctant promise to get the first Congress to adopt amendments, the "Bill of Rights" makes her double-speak even more obviously dishonest.
I wouldn't trust anything that came from someone so dishonest at this point in her career.
As RMJ has pointed out "originalism" really comes down to a "justice" substituting their own unadmitted interpretation as the "original meaning" of the Constitution, Scalia never seemed to find an "original meaning" that, remarkably, didn't come out here he wanted it to and neither will this liar-lawyer from, I'll always point out, Notre Dame Law School. The Jesuits really need to be held up to scorn for their role in producing factories to churn out servants of the economic elite. They should not be able to fudge the moral atrocity that they put directly onto our courts and into our government and institutions.
This proves how dangerous the promiscuous adulation of the "founders" and the Constitution are to us. The insane cult of them in this empowered form denies that any and all of the vast experience, hard won justice, equality, of anyone but a handful of men, all but one slave owners, all of them wealthy and connected, NONE OF THEM WOMEN, NONE OF THEM NATIVE AMERICANS, NONE OF THEM BLACK OR POOR OR JEWISH OR, ETC.
Amy Coney Barrett is the icon of the danger of that cult of the Constitution and the brain-dead idea that that small, select group of men were either morally or intellectually or even by inclination capable of ruling us with their ideas. That is while discounting experience two centuries since their deaths and so much bloodshed, struggle, LEARNING AND THINKING OFTEN IN RESPONSE TO THE INJUSTICES, WRONGS AND STUPIDITIES THAT THOSE MEN WROUGHT is of no standing to govern us. I would joke that Amy Coney Barrett would certainly not wish to have medicine have stopped in 1787, though who knows, maybe she'd overturn any regulation that required medical care during childbirth to protect the life and safety of the mother. Her ideas about women in governance are as hypocritical as they are bizarre. I am tempted to go into what the "founders" would have thought about her two adopted children and their rights, not a few of them having been viciously opposed to the end of slavery in Haiti, including those who made the foreign policy of the young United States.
You can be sure that such a mindset will have no problem with doing without elections in which we mere mortals can express our conclusions based on our own experience and our own learning, it will be as nothing to that coven of high-priests in black robes paid by our taxes and kept in safety and luxury by us as they divine with the bones of the founders how we are to be governed. Only don't be shocked when they uniformly come out for the successors of the Founders, the businessmen, the tycoons, the old and new money. After all, that's who wrote the Constitution, in most cases it was such people who got to amend it too.
As to the wisdom of the founders in the Constitutional Convention, you should read up on the early experience of elections for president and vice president as their stupidity came back to bite them almost immediately, once the deified Washington was out of it.
‘Strue
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