The confirmation of Justice Amy Coney Barrett has been a moment of triumph for the rule of law. That’s because she is an originalist who believes the judiciary should enforce the Constitution as written rather than dictate judges’ personally preferred outcomes.
Her confirmation provided a moment for bearing witness to the ignorance of many who oppose her judicial philosophy. A good example is the perspective expressed last week on the Senate floor by Sen. Edward Markey, D-Mass.
“Originalism is racist,” Markey proclaimed. “Originalism is sexist. Originalism is homophobic.”
Markey wasn’t finished. “Originalism is just a fancy word for discrimination,” he said, repeating that charge in a tweet for good measure.
The good senator cited nothing specific in support of his provocative claim concerning a judicial philosophy championed by such diverse luminaries as Justices Antonin Scalia, Clarence Thomas, and Barrett. He made only a vague assertion that originalism somehow “has been used” to “deny rights” to “members of our society who had no rights when the Constitution was ratified.”
On the charges of sexism and homophobia, we can be reasonably certain that Markey is referring to the lack of textual or historical constitutional support for the constitutional sanction of abortion and gay marriage—and originalists’ refusal to look past such shortcomings and embrace the outcomes Markey prefers.
But an originalist refusal to enshrine non-textual, non-historical “rights” in constitutional law does not preclude legislative majorities from creating new rights, or from forbidding new forms of discrimination, so long as such legislation respects the textually based, historically supported rights of others.
Dissenting from the court’s creation of a new right to gay marriage in Obergefell v. Hodges, Justice Scalia — the foremost champion of modern originalism — said “it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me.”
When courts rather than political majorities create new rights, they defeat the most basic liberty enshrined in the Constitution and Declaration of Independence: self-government. With abortion and gay marriage, the Supreme Court did just that. It ended robust public debate that yielded different results in different states — “American democracy at its best,” as Scalia said. Such erosion of constitutionally protected democratic accountability is not defensible just because one happens to like the result in a particular case.
What about the charge that originalism is “racist”? As a conservative, an originalist, and a black American, I am greatly intrigued by this claim. The short answer is that Markey does not even attempt to support the theory that originalism is somehow racist.
Worse, Markey’s preferred judicial philosophy — one in which judges decide cases based on their preferred outcomes rather than constitutional text and history — led to the most racist Supreme Court decision of all time: Dred Scott. In that case, the Supreme Court ruled that slaveholding was a constitutional right that neither Congress nor state legislatures could outlaw.
Such a “right” had no textual or historical grounding in the Constitution. It arose instead from the court’s preferred outcome and its understanding of how the Constitution should, through the exercise of judicial power, “grow” to embrace new rights as the country expanded westward.
To be clear, I do not believe that Markey sympathizes with slavery (although I have never discussed the matter with him). Rather, he sympathizes with the same activist judicial philosophy that enabled slavery to continue until the country was sundered by the Civil War.
As the Dred Scott decision shows, when we unleash judges to act on their personal preferences — to “update” the Constitution as they see fit — we do not know what we will get, and we must live with the consequences. In contrast, the whole point of originalism is to negate the personal biases of judges — to require them to enforce not what they want, but what we already have.
With originalism, judges must respect the values and principles the country has embraced through the political processes of constitutional adoption and amendment. In this way, enforcing the Constitution as originally understood embodies the rule of law, rather than the rule of judges.
Ultimately, adherence to a judicial philosophy that inherently excludes personal preferences as grounds for legal answers cannot plausibly be caricatured as bigotry.