So the Senate has done it. It has confirmed Amy Coney Barrett for a lifetime appointment to the Supreme Court of the United States.
We fervently hope Barrett is not the harbinger of doom for equal rights, bodily autonomy and health care that we fear she is. We hope she’ll be as impartial as she claims, though her refusal to give any indication of her thoughts during her Senate hearings concerns us. We hope she is not the linchpin that unravels a woman’s right to choose, the LGBTQ community’s right to marriage and freedom from discrimination and guaranteed heath care coverage for millions that President Trump, Senate Majority Leader Mitch McConnell and other conservatives seem to think she is.
Barrett touts herself as an “originalist” — a judge who considers the plain meaning of the words of the Constitution and what the Founding Fathers would have had in mind at the time of its writing. Originalism sees the Constitution as a static document — and if the matter at hand isn’t mentioned in the original text — or would not have been considered by the Constitution’s writers — then it’s not for an originalist judge to decide. But here’s the thing: When the Constitution was written, “all men are created equal” only applied to white, property-owning men. When the Constitution was written, a woman could not hold a “man’s” job, let alone have a seat on the highest court in the land. When the Constitution was written, our modern cars weren’t yet a glimmer in someone’s eye; guns that could fire multiple bullets per second would have been little more than a fantasy; the internet — this intangible thing that gives us instant access to almost all the knowledge in the world — would have been incomprehensible; and data mining, online privacy and cybersecurity would have sounded like mad-house gibberish.
While originalism seems like a good idea on the surface, it ignores the fact that our country — our world, really — has developed leaps and bounds beyond what the framers of the Constitution could ever imagine. The framers knew and understood the nation would outgrow the Constitution in its original form — that’s why they created a process for amendments. Thomas Jefferson (founding father, though not a writer of the Constitution) proposed that the Constitution should be rewritten every 19 years: “The earth belongs always to the living generation. … They are masters too of their own persons, and consequently may govern them as they please.” This idea that times change — that everything changes — is why we govern based on the spirit of and the ideals embodied in the Constitution, rather than following every word verbatim.
Barrett claims she will not “legislate from the bench,” but if she rules based only on the Constitution’s text, she could undo hundreds of years of legislation and rulings that have allowed our country to make progress toward fulfilling the greatest promise of the Constitution: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
