If Amy Coney Barrett was a true originalist, she wouldn’t be allowed to vote.
— Steve Hofstetter, comedian
Comedians make their money from finding humor in situations. Often, they catch the discrepancy in an argument and make a point by making a joke out of the discrepancy. As with satire sites like The Babylon Bee, the humor may lay wide open the root of the discrepancy.
In this case, the root of the discrepancy is that women were not allowed to vote until 1920. My grandmother and several of my aunts and uncles were alive in 1920. My father was already a legal adult in 1920. Thus, if one wishes to claim to be a true originalist and to want to do things the way in which the original writers of the Constitution intended, then they intended that women would not vote or hold high public office. That is not even bringing up that about half of the colonies intended to keep slavery and to keep Indigenous Americans from voting. And, it was all written into the Constitution.
Other than in incredibly extremist far-right supremacist groups, there are no true originalists left and there cannot be if they truly support the Constitution. The vast majority of supremacist groups are not originalists. There can be traditionalist interpreters of the Constitution, meaning that they try to conserve previous interpretations rather than to re-interpret. (At least, they would claim they would not be re-interpreting, even if they were, but that is another argument.) But, the person who claims to be a true originalist runs into the problem of history and 27 Amendments. At least 27 times the people of the USA were upset enough at the prior interpretations of the Constitution that they changed the Constitution.
Like it or not, the problem started immediately, as the colonial representatives from some of the States rose and refused to approve the original Constitution until the Bill of Rights was added, the first 10 Amendments. That originalist Constitution did not even make it to approval before the originalist writing had to be amended. And, then, it had to be amended 17 more times after that.
Those amendments do not even count the ways in which the Constitution was interpreted through the use of enabling legislation. Much of the Constitution is deliberately broadly worded so that it does not often need to be amended. That means that the fleshing out of the Constitution takes place through Federal and State laws. Since those are significantly easier to change than the Constitution, it is often through those laws that the interpretation of certain passages in the Constitution changes over time. All appeals to the Supreme Court involve claims of a breach of a Constitutional statute. Think of how very few appeals make it to the Supreme Court and even fewer positive judgments by the Supreme Court. Think of how many laws actually pass muster.
More than that, the inherited Anglo-Saxon common law tradition means that all laws are subject to a certain degree of reinterpretation, as needed, to maintain a certain degree of common sense in our statutes. To give an example, when the Internet began to take off, it was quickly realized that there were no laws that spoke to the Internet. After all, how can one legislate about something that never existed before? Among the first questions to come up were questions about copyright. Is something being republished if there is no physical copy? While that sounds silly today, it was not silly at first. The Internet became the Wild West of file exchanges for a while. Then, even before legislation could be passed, judges began to extend the meaning of copyright law from printed and recorded media to electronic media.
A true originalist judge would have simply ruled that the law says nothing about the Internet and therefore nothing could be done about it. Under a Napoleonic Code system [look it up], that would be the only ruling a judge could make Under a common law system, the judge may choose to extend a rule as a common-sense interpretation of the meaning of the law. Generally, if the issue is a minor issue, a judge will not tend to extend an interpretation, but on a major issue, they may extend. I have seen examples of both approaches. I recently ran across an interpretation having to do with an HOA in which a resident won against the HOA based on a strict wording of the covenants. I suspect that the judge did not like HOAs. The various Supreme Court rulings on the rights of defendants and on reasonable belief by police are rulings in which there is no actual wording, only the carrying out in a common-sense manner the principles found in the Constitution.
If I believed that Judge Amy Barrett were a real originalist, I would oppose her simply on those grounds, and I would ask her to step down as judge and to stop voting. But, regardless of her claims, Judge Barrett is not an originalist, she is a traditionalist. She does accept both Constitutional Amendments and precedent (which means common law). She will probably vote against some of the precedents found before on the grounds that the prior common sense interpretations went farther than they ought to have gone. But, if she is honest with herself, she will admit that she does not rule in an originalist way. She rules in a traditionalist way.
Here is a warning, if the looks-to-be six traditionalist judges on the Supreme Court begin to rule in a too traditionalist way, they may simply trigger additional amendments to the Constitution. The reality is that the people of the USA have shown themselves quite willing to overturn the judges if they are driven to it. We shall have to wait and see whether the advent of a super-majority on the Supreme Court begins to trigger the writing of further Constitutional amendment.
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