Barrett Unmodified: Moments of Clarity Emerge From The Confirmation of Judge Amy Coney Barrett

Below is my column in the Wall Street Journal on nomination of Amy Coney Barrett. While the confirmation hearing often seemed weirdly disconnected to the nominee, there were important moments where the jurisprudential views of Judge Barrett were expressed with striking — and rare — clarity.

Here is the column:

As a law professor, I have long viewed confirmation hearings with the same disdain as atonal music: they lack any cohesion or satisfaction. “To the uninitiated listener, atonal music can sound like chaotic, random noise,” says “Music for Dummies.” Confirmation hearings produce the same random noise of bloviating senators and evasive nominees.
Until this week. The confirmation hearing for Judge Amy Coney Barrett had substance and even a discernible pattern. The nominee expressed herself in a strong and unmistakable tone.
While following the “Ginsburg Rule” in refusing to give “hints,” “previews” or “forecasts” of future rulings, Judge Barrett was more open than any nominee since Robert Bork in 1987.
It was clear that this would be a different confirmation from the very outset when Judge Barrett answered the first questions from Sen. Chuck Grassley. She came out of the gate with this declaration: “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. So that meaning doesn’t change over time and it isn’t up to me to update or infuse my own policy views into it.”
Judge Barrett is not the first to embrace the label of originalism but she may be the first since Antonin Scalia to truly mean it. Even Justice Elena Kagan said “we are all originalists” at her confirmation hearing, but that was due to her repackaging of what originalism means: “Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way we apply what they tried to do. In that way, we are all originalists.” Chief Justice John Roberts does not identify himself as an originalist and few view most of the court as following this view of constitutional interpretation. Justice Brett Kavanaugh identified himself as an originalist but cited Justice Kagan’s statement; few academics view him as an originalist. In his confirmation hearing, Justice Neil Gorsuch said that he “was happy to be called an originalist,” but the willingness to embrace the label may be easier than embracing the doctrine.
Judge Barrett is a real, honest-to-God originalist. At her hearing, she left little question that her analysis of the original provisions of the Constitution and the Bill of Rights would turn on the original meaning of the words when they were made law. To interpret the Constitution’s meaning, she cited debate from the founding years or shortly thereafter, rather than centuries of subsequent interpretative or social change. For Judge Barrett, liberality in interpreting some parts of the Constitution is apparently limited to a matter of months in the 18th century. She acknowledged at one point that there is a legitimate range of debate on whether you consider a provision’s meaning on the date of its enactment—say, Dec. 15, 1791—or whether you can also consider interpretations from the months that preceded its enactment. That is lifetime away from a “living Constitution.”
Another notable moment of clarity in the hearing regarded Roe v. Wade (1973). Judge Barrett did not hide her personal pro-life views, just as her predecessor Ruth Bader Ginsburg did not hide her pro-choice views. The two women are strikingly similar. Both graduated at the top of their law classes. Both went on to distinguished teaching careers. Both started their careers writing in the area of procreational rights, albeit from different perspectives.
One moment in the hearing made me drop my popcorn. Sen. Amy Klobuchar was asking Judge Barrett about the hold of precedent, and identified Brown v. Board of Education (1954) as “super-precedent.” When Ms. Klobuchar asked whether Roe is super-precedent, Judge Barrett landed this line: “I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall into that category.” That could not be clearer. She didn’t say that she would overturn Roe, but rather that there is nothing inviolate about it; nothing insulates the ruling from later re-evaluations of its constitutional foundation.
Judge Barrett did not entirely embrace the notion of super-precedent. She described it as a theory put forward by academics in publications. Many legal scholars question the basis for declaring an ever-wider array of cases to be super-precedent as a way to protect favored rulings. It is a convenient theory. Democratic members have denounced nominees for considering overturning cases like Roe while in the next breath demanding they overturn others like Citizens United v. Federal Election Commission (2010), on free speech, and District of Columbia v. Heller (2008), on gun rights.
Judge Barrett was equally clear on the use of international law in U.S. cases. She challenged the use of international law as an authority in shaping the meaning or limiting the application of U.S. constitutional or statutory authority. It sounded very much like her mentor, Justice Scalia.
Judge Barrett also went into considerable detail on prior opinions—sometimes so much that senators seemed to wish they hadn’t asked. For example, Sen. Dick Durbin asked why Judge Barrett ruled in a 2019 case that states cannot strip Second Amendment rights from ex-felons without proof that they are dangerous, but maintained that ex-felons can be stripped of voting rights. Judge Barrett began to explain that these rights are found in different parts of the Constitution and that voting rules are left to the states. But Mr. Durbin cut her off—thereby protecting the Senate from stumbling into a substantive discussion.
Despite such efforts to avoid actual consideration of first principles of law, the Senate has before it a rare sight: a nominee who is unabashedly conservative and entirely open about her jurisprudential views. The problem is not that the Democrats did not learn what they would get in a Justice Amy Coney Barrett. The problem is that she told them precisely what they would get.
Mr. Turley holds the Shapiro Chair of Public Interest Law at George Washington University, where he teaches a course on the Constitution and the Supreme Court.

78 thoughts on “Barrett Unmodified: Moments of Clarity Emerge From The Confirmation of Judge Amy Coney Barrett”

  1. hey guess what they actually are squeezing universities now, as I believed they should but its just a start:
    —————————

    Federal Register Final Regulations on Private University 1.4% Excise Tax
    T.D. 9917; 85 F.R. 65526-65564

    Guidance on the Determination of the Section 4968 Excise Tax Applicable to Certain Colleges and Universities

    [4830-01-p]

    DEPARTMENT OF THE TREASURY

    Internal Revenue Service

    26 CFR Part 53

    Treasury Decision 9917

    RIN 1545-BO75

    AGENCY: Internal Revenue Service (IRS), Treasury.

    ACTION: Final regulations.

    SUMMARY: This document contains final regulations for determining the excise tax applicable to the net investment income of certain private colleges and universities. The regulations affect certain private colleges and universities.

    ——————MY COMMENT:

    TAX THEM UNTIL THEY BLEED HARD AND DISPENSE WITH ALL THE STUPID PROGRAMS AND MISCHIEF! 1.4% OF INVESTMENT INCOME IS NADA!

  2. Supreme Court Lacks Conservative Vote To Grant Republican Request To Stop Extended Voting Period In Pennsylvania

    The Supreme Court Monday night allowed Pennsylvania election officials to count mail-in ballots received up to three days after Election Day, refusing a Republican request to stop a pandemic-related procedure approved by the state’s supreme court.

    The court was tied, but that means a request to put the state’s court ruling on hold failed. The court’s four most conservative justices — Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh — said they would have granted the stay.

    But it takes five votes to issue a stay, and that means Chief Justice John G. Roberts Jr. sided with liberal Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

    Neither side explained the vote, which often is the case in emergency requests.

    The order was the latest is a string of election procedure battles waged in the states between Democrats and Republicans. Previously the court sided with South Carolina Republicans and said most mail-in ballots there must contain a witness’s signature, something federal courts had said should be waived because of the coronavirus pandemic.

    The litigation is often over seemingly arcane details, but ones that could make a difference in close races.

    Pennsylvania has particular significance because it is crucial to President Trump’s reelection fortunes. He defeated Hillary Clinton there in 2016 by 44,000 votes, or less than 1 percent.

    Edited From: “Supreme Court Denies GOP Request To Stop Extended Period For Returning Mail Ballots In Pennsyvania”

    Today’s Washington Post
    ……………………………………………………………………………………………………………………………………………………………………………………………………………..

    This is where the election is really at: ‘A national effort by Republicans to make voting as big of a hassle as possible’. Note John Roberts joined the liberal block on this. Which illustrates why Amy Coney Barrett is crucial to Republican schemes.

    1. Anonymous: Timely contribution!

      You write: “Which illustrates why Amy Coney Barrett is crucial to Republican schemes.”

      It’s a reasonable argument. But since Justice Roberts was a Bush appointee, it could also illustrate the opposite – that like Justice Roberts, an independent ACB cannot be counted upon to vote with the worst Democratic assumptions, fears and smears concerning the GOP?

      1. Johnathan, nothing about her writings inspire confidence in Judge Barrett. She’s a so-called ‘Originalist’. That term is code for “severe conservative’.

  3. Jonathan: This is at least your seventh column defending Judge Barrett’ nomination. Seems like over kill to me. McConnell says he has the votes to confirm Barrett’s nomination. If we know any thing about McConnell he does know how to count votes. Perhaps it’s because you don’t want any defections when the Senate Judiciary votes on Thursday.

    No doubt, as you say, Barrett is a “real honest-to-God originalist”. Emphasis on “God”. She is in the mold of Scalia and Gorsuch who believe the Constitution is fixed at the time that it was enacted and can be changed only through the Amendment process. In the case of Roe v. Wade Barrett has clearly staked out her position in opposition to Roe. If Barret were to join a majority in overturning Roe it would be difficult and a long process (years) to make a woman’s right to choose once again the law of the land. That’s why the states are so high in Barrett’s nomination.

    In the history of the Court most of the Justices have not be “originalists”. In fact, Justice John Marshall never believed in this interpretation. He said: “We must never forget that it is a Constitution we are expounding meant to be adapted and endure for ages to come”. Even Madison argued that the meaning of the Constitution must evolve in response to public opinion. The modern “originalists”, Justices Scalia, before his death, Gorsuch and soon to become Justice Barrett are the outliers when it comes to constitutional interpretation. When Neil Gorsuch was nominated Erwin Chemerinsky, Dean of Berkeley Law, talked about “originalism” as “the end of constitutional protection for liberties such as the right to marry, the right to procreate, the right to abortion,…the right to engage in private consensual homo sexual activity. No longer would women be protected from discrimination under equal protection”.

    Adding Barrett to the Court would be a threat to many of the rights we have come to accept as part of the constitutional order. Women are particularly concerned by Barrett’s nomination. That’s why a majority of Americans oppose Barrett’s nomination…especially at a time when millions are already voting.

  4. “…we are all originalists…”

    – Elana Kagan
    ____________

    That is the most ridiculous statement in American history uttered by an affirmative action project who would have never been gifted the slot she absurdly occupies under the original intent of the original originalists. I suppose that formulation may be understood as “pouring salt on the wound” after an exceedingly facetious appointment such as hers.

    The original originalists suffered no welfare state, confiscation of or interference with private property (no claim or exercise of dominion over private property by government) and no regulation beyond that of the value of money, the “flow” of commerce and land and naval Forces.

    The original originalists suffered no affirmative action, quotas, welfare, food stamps, rent control, social services, forced busing, minimum wage, utility subsidies, WIC, TANF, HAMP, HARP, TARP, Agriculture, Commerce, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc.

    The original originalists knew well the Constitution they had recently adopted including the limitations on taxation and regulation of Article 1, Section 8, and the immutable, absolute right to private property in the 5th Amendment.

    The original originalists established the United States of America, they did not “fundamentally transform” the United States of America.

    Originally, the American Founders restricted:

    – immigration to “…free white person(s)…,”

    – voting to males, Europeans, 21-year-olds and vested citizens with 50 lbs. Sterling/50 acres,

    – the presidency to “natural born citizens,”

    – taxation to only “…general Welfare…,” excluding individual welfare, specific welfare, redistribution or charity,

    – regulation to money, the “flow” of commerce and land and naval forces, and

    – claims to and dominion over private property to owners.

    Of course the full and absolute rights, freedoms, privileges and immunities of individual Americans persisted from the time or the “originalists” only until Abraham Lincoln commenced the brutal process of their ultimate nullification and abrogation.

    Originalists indeed.

    More accurately, enemies and conquering invaders.

  5. In some areas, ACB was less forthright — like unwilling to discuss Grsiswold. I think we can do a lot better in terms of nominees discussing their judicial philosophy and approach to judging, including examples from past decisions. After the election, perhaps you bring the several interested parties from the 3 branches and legal community together and try to arrive at a consensus for more information — Would love to see JT promote such an effort.

  6. “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. So that meaning doesn’t change over time and it isn’t up to me to update or infuse my own policy views into it.”

    This conceals a fundamental difference between textualism, and originalism as applied by Scalia and his adherents. Heller shows this plainly. It overrides what appears to be the clear import of the text, which includes a tie to well-ordered militia, in favor of what it judges based on historical interpretations and associations to be the original intent despite the text.

    In Heller this led to the creation of a right nowhere found in the text, the very thing conservatives so often complain of when the result doesn’t suit them.

    That kind of originalism is inherently radically retrograde, subject to repeating errors of past jurisprudence and interpretation. It’s not clearly a legitimate or wise way to interpret the Constitution, as so many conservatives assume it is.

    I take no comfort in Barrett’s remarks. I think Heller shows that originalism can be just as activist and ideologically motivated as other approaches. As the Court becomes increasingly subject to political manipulation, and increasingly distrusted for that reason, Barrett’s nomination is likely to continue and worsen the trend.

    1. Sanpete, the court should be mistrusted as it is broken and illegitimate. The GOP stole a seat in 2016 and that resulted in a 5-4 conservative majority over the last 4 years when it should have been a 5-4 liberal majority. Secondly, by virtue of a dysfunctional electoral college, we will now have 5 of the 9 justices appointed by presidents who the people specifically rejected in elections. The 2nd factor is accidental and not purposeful like the 1st factor, but nonetheless the founders intended that the SC reflect indirectly the will of the people. With the Democrats having won 6 of the last 7 popular votes there is no logical justification for the court to be so heavily GOP dominated.

      PS Let’s not forget that Ms Barrett made the case for denying Garland’s appointment in 2016 and is therefore, along with her bizarre judicial theories, a major hypocrite along with the Senate’s GOP majority.

          1. Maybe I should clarify that it isn’t functioning at all as originally intended in regard to deliberation and checking popular sentiment, but it is functioning as intended in regard to power distribution among states. Don’t think that was intended to result in national partisan advantage as well, though.

        1. Please explain how it functions as intended Rex. You understand there is no deliberative process and the results are almost random. Kerry could have won in 2004 without a popular vote victory if only a few thousand votes in Ohio had flipped.

      1. Since the fix was in from the start, I haven’t bothered to follow Barrett or the confirmation process much. Where did she support Garland’s treatment? The lying and bad faith surrounding that may result in some very bad developments yet to come. The GOP will richly deserve that, but it may not be good for the country.

        The problem often referred to as that of the electoral college, though it goes beyond that, is real. One person one vote isn’t the rule as it probably should be. I understand the historical reasons for that, but there’s no denying the result involves a fundamental injustice.

        I don’t think the Court is entirely broken and illegitimate, but I do think Barrett’s nomination and the context for it moves it more in that direction. Sadly, most conservatives are too happy to be getting partisan advantage to worry about that.

          1. She didn’t say what many others did, that it’s illegitimate to confirm a justice that close to an election. I don’t like her seeming downplaying of the precedent that was bound to cause severe trouble later, but what she said doesn’t make her a hypocrite for accepting this nomination.

            1. We don;t agree Sanpete. She is clearly arguing the case for not hearing the Garland nomination and raising as many objections as possible, and all related to it being an election year. Finally she says it is within the Senate’s power “to not act”. No it’s not! That is not even hinted at in the Constitution which she claims – falsely as this incident clearly demonstrates – to be a originalist on. Oh Yeah? Where in the constitution does the Senate have an option to “advise and consent” on a presidential nomination to the court? It doesn’t exist and she is patently full of s..t.

              1. of course it is. a power and duty to act, is not a power and duty to act within a specific time frame. the time frame is not specified.

                1. So, Kurtz is of the opinion that an :”originalist” would interpret the Senate’s constitutional duty to advise and consent as having no clock running even though the President’s and their terms do have a clock. Interesting theory there Kurtz, but cut the s..t. That is not what a person concerned with the thoughts of the founders would think, or any reasonable person for that matter,

              2. Not all objections to holding votes on Garland would make her a hypocrite. Whether her analysis is right or wrong, and I don’t see any clear error in the legal aspect, she didn’t adopt a line that would imply the treatment of her own nomination is hypocritical for her. She commented on the political considerations that would influence whether a nomination was considered, and tacitly accepted them, but that only supports her own case now.

                It certainly is hypocritical for most of the GOP, but she herself nowhere said or implied the current process would be illegitimate.

                1. Sanpete, she gave weight – in support of not advising and consenting on Garland, as was everything she said – to flipping the court ideologically. She also falsely said the Senate has a right “to not act”. No, it does not according to the constitution she claims to hold dear and literally, and you did not address this.

                  1. She gave weight to flipping the court as a political consideration, and tacitly accepted it, without opining on its wisdom. That doesn’t make her a hypocrite.

                    I don’t see anything in the Constitution that implies the Senate must act on nominations. Some argue there’s a moral or practical duty to do so in the context of established procedures for governance, but that’s a political matter, not legal.

                    1. Let me help you out Sanpete:

                      “[The president] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States…”

                      Now help me out. Where is the part about the Senate not doing this, and pretend you are an “originalist”?

                    2. Joe, the question is where the part is that requires the Senate to hold hearings or vote on nominees.

                      I haven’t said anything about being an originalist, a concept I just criticized above as practiced.

      2. A “dysfunctional” EC? What is dysfunctional about it? It worked AS ADVERTISED! This is how the framers envisioned our electoral process and it shows the brilliance of their telescopic vision into our futures. Your popular vote theory just doesn’t hold water. We’re not a pure democracy.

        Your second point of denying Garland’s appointment is wrong also. There hasn’t been an appointee pushed through in over 190yrs when the Executive and Senate were out of balance. 27 times it came forward and only 19 of those made the cut…all when the Exec & Senate were the same. You don’t have history or precedent on your side.

    2. Heller shows only that the literal text of the Second Amendment and the plain English meanings of the word, were finally recognized in a new case beyond US V Miller which implicitly recognized an individual right to keep and bear arms in the 1930s. This was a no brainer, really; and it was judicial activism that was pretending otherwise until Heller came down.

    3. Judge Amy Coney Barrett dissent in Barr v Kanter (2019) Second Amendment argument acquiesced to 42 references to “person/s”. Her Second Amendment, “textualism” approach having zero reference to “person/s. Judge Barrett’s view only recognizes “person/s” in Barr and her refusal to acknowledge, recognize or connect the U.S. Constitution benchmark legislative interpretive language of “person/s,” to the Second Amendment, referenced 49 times in our Constitution. Questioning Judge Barrett’s judgment runs in conflict with her view of the Barr v Kanter and not applying her viewpoint of “person/s” to the Second Amendment.

    4. Something to think about. Amy Barrett can’t have it both ways.

      Judge Amy Coney Barrett dissent in Barr v Kanter (2019) Second Amendment argument acquiesced to 42 references to “person/s”. Her Second Amendment, “textualism” approach having zero reference to “person/s. Judge Barrett’s view only recognizes “person/s” in Barr and her refusal to acknowledge, recognize or connect the U.S. Constitution benchmark legislative interpretive precept of “person/s,” to the Second Amendment, empowerment referenced 49 times in our Constitution. Questioning Judge Barrett’s judgment runs in conflict with her view of the Barr v Kanter and not applying her viewpoint of “person/s” to the Second Amendment.

  7. I agree with JT that Amy Coney Barrett was very forthright, articulate and engaging with the Senate Judiciary Committee. She gave a cogent civics lesson on how the Federal Judiciary works, and how the Supreme Court works. No doubt based on the Nielson ratings, tens of thousands of students were watching ACB in the role of teacher.

    I would have liked it if someone had asked ACB: “How does the Constitution deal with abdication of responsibility in the legislative function? Given that neither the Exec or Judicial Branches are setup to act as alternative legislatures, how can there be checks and balances placed on Congress to keep up with the pace of change in terms of lawmaking?”

  8. Sorry, Turley, your attempt to beatify Amy Covid Barrett by favorably comparing her to Ruth Bader Ginsburg just won’t work. We all know why she was nominated and why her “confirmation” will be rammed through–it is for political reasons only because many of the Republicans who will vote for her will soon be lame-ducks, something she knows, and she allows herself to be used in this manner because of her arrogance and egotism–anything for a seat on the SCOTUS. She, like Kavanaugh, will always be viewed with skepticism. Not only that, it is sacriligious to compare a lightweight who “rose to the top” because of her extreme views and vetting by The Federalist Society with a principled woman like Ginsburg, who was a true trail-blazer. Barrett did not face the hurdles Ginsburg did. Ginsburg’s courage and perseverance paved the way for Barrett to be at least eligible for an attorney job after law school–something denied to Ginsburg, who had to work harder than Barrett ever dreamed of to get ahead. Sorry, Turley, you don’t have the credibility any more to sell anything, especially something so obviously un-American as pushing through a nomination literally on the eve of an election.

    1. Leave it to Natacha to post the most butt-hurt, lacking-in-content “contribution” to this comments section. ACB showed herself to have as much gravitas as RBG ever did, a mind as clear and sharp as anyone I’ve seen nominated in the past 50 years. She is a brilliant addition to the Supreme Court. Nothing un-American about her or the process. A LOT un-American about your crabbed remarks…

      1. She refused to answer questions that she shouldn’t have refused to answer.

        She was unwilling to say that it’s illegal to vote twice.
        She was unwilling to say whether Article II allows Trump to “do whatever I want”.
        There are many more examples.
        She tried to hide behind what she called the “Ginsburg rule”, but Ginsburg was much more forthcoming in her own confirmation hearings than Barrett was.

        New today from the AP: She served for nearly 3 years on the board of private Christian schools that effectively barred admission to children of same-sex parents and made it plain that gay and lesbian teachers weren’t welcome in the classroom. That makes her a bigot. I do not want a bigot on the court.

  9. I enjoyed reading that. Sometimes it’s more fun to watch a knowledgeable spectator watch the game than to watch the game itself.

  10. Like too many of the SC justices Barrett has spent zero time as a lawyer in court and knows nothing of criminal and civil processes (unless of course she sat in on the Bush v Gore fight in Florida, that will now have 3 GOP alumni on the court. Maybe she was just in the Brooks Brother riot in Dade County That experience in fighting for the loser of the popular vote to become President – and specifically declared by the SC as not to be read as precedent (?)) good practice for her immediate assignment). Sotomayor is the only justice who has had a real job in law.

    But never mind about that. Given her “originalist” principles, many Republicans will be happy to see blacks once again defined as 3/5s of a human.

    1. Yeah Book, given your failed track record on the law over the last 4 years, it stands to reason if you perceive Barrett as unqualified, then she is without a doubt supremely qualified.

    2. Originalism treats Amendments to the Constitution with the same authority as unamended portions of the 1789 Constitution. Amendment are taken as having dispositive authority countermanding the older portions they update or replace. Therefore, an originalist would contemplate what the Ratifiers of the 14th Amendment were intending as the desired impact in 1868, and resoundingly refute your claim that the 3/5ths rule of 1789 is supported by originalism.

      The root word “origin” pertains to the time, place, circumstances and intended purpose of Constitutional writing and Amending.
      Your interpretation of “originalist” as preferring to ignore Amendments is just incorrect.

      1. The 13th Amendment allows slavery as a punishment for crimes (“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction”). Are the imprisoned people who are used as slave labor supposed to be counted as free people or as 3/5th of a person? What would the ratifiers of the 13th Amendment say?

      2. So wait! You’re saying that we need to treat the original words of people who owned slaves and thought they should be counted as 3/5s a person with complete deference and respect because certainly any other ignorant BS they believed and uttered has been corrected by now in later amendments.and if not, that’s our cross as citizens to bear? How about we act within the positive principles they delineated as tempered by modern knowledge and quit pretending to be mind readers from the near dark ages? Is it because it helps achieve the political goals Ms Barrett and her handlers seek? Hmmmmm.

        1. Yea I can count on you to support a new constitutional convention. We will write a New Constitution, written with knowledge of all the flaws in the Old debunked useless constitution.

    3. Justices Breyer and Kagan have spent no time as a court room lawyer. According to your logic, they too are unqualfied for the court. I didn’t research wether Breyer or Kagan were ever court room lawyers. Iam just trusting your unquestionable veracity. C’mon man.

    4. WOW the stupidity of Twitter invades a legitimate discussion blog and is enlarged through a Pelosian magnifying glass into proof positive The theory of Universal Empty is no long theory only wants a visit to 430 S. Capitol. Dimwit the reason for 4/5ths was to get the Democrat Slave States to agree to something and it had a sunset provision that automatically changed that to 5/5ths that followed in the Amendments setting up the pathway to such change and put former slaves as voters BEFORE Women got the privilege. No other country in the world figured out how to go from a Soviet style upper class rules lower class does as they are told and if it wasn’t for the former Slave Parties Southern using and Northern selling but both Democrats we would still be having slave auctions…. whoops forgot the draft. Many Democrats in fact most Democrats are NOT democratic it is cover job and as Putin pointed out last week they are more like the Communists of the USSR than anything else.

    5. Like too many of the SC justices Barrett has spent zero time as a lawyer in court

      Here’s a capsule description of her old firm:

      “For Jack Miller, the warning was timely. His law firm, Miller, Cassidy, Larroca & Lewin, was at a crossroads, almost exactly where Williams & Connolly had been a decade earlier. It was still small and targeted toward litigation, trial work, and criminal law. Everyone knew everyone; Miller Cassidy fostered a collegiality that was disappearing from law firms. No one at Miller Cassidy was told where to buy gray striped suits, as lawyers at some firms were.”

      https://www.washingtonian.com/2001/05/01/the-perfect-lawyer/

        1. The 3/5ths clause is an anti-slavery clause. The southern states wanted to count slaves fully to get more seats in Congress and support slavery. Others thought it not right that they pretend to be representing people held as slaves. The 3/5 was a compromise that reduced the slave holding state’s power in Congress. It ran against slave power, not for it.

          Gawd, what people fail to learn in our collapsing schools these days.

          1. You think that the southern states wanted slaves counted fully in order to give slaves power? Are you nuts?

            It did not run against slave power. It countered giving slave-owning states representation in proportion to their full population, since so much of that population was enslaved. It was partly offered in combination with the EC, for the purpose of giving slave-owning states more power in the EC, instead of leaving the election of the President to a popular vote that would have preferences the northern states, which had larger populations of free men eligible to vote.

            1. Unfortunately, Anonymous, you know neither history or the Constitution. The EC was requested by northern states, and specifically was proposed by Paterson of New Jersey, an abolitionist. The larger states at the times were ones like Virginia, a southern state. The result didn’t make them happy, and it is noteworthy George Mason of Virgina didn’t sign.

            2. Anonymous, take the L – you are completely wrong on this. Young has given a succinct summation of the truth. The 3/5ths compromise was incorporated to get the slave states to sign on to the new Constitution. The slave states wanted each slave to count 100% to inflate their populations and get them awarded more representatives (kind of the same thing Democrats are trying to do right now by clamoring for illegal aliens to be counted toward any redistricting after the 2020 Census). The free states did not think it morally right to count a slave the same as a free man since they had none of the rights of a free man – in other words, they didn’t want to see slavery rewarded in this way. The slave states dug in on this point, and it took this compromise (only 60% of the slaves counting toward districting balanced by a sunset clause on the importation of slaves) to get them to sign. Unfortunately, no one could foresee how Eli Whitney’s invention of the cotton gin would reinvigorate chattel slavery, which was dying out, and totally torpedo any sunsetting of slavery. It would literally take the massive shedding of blood and treasure in the Civil War to turn the arc of history toward freedom.

              1. True enough Allen, well said, but don’t forget the Yankee industrialists could have opened their pockets for a paid manumission, consistent with the Fifth amendment takings clause, but the offer was never on the table.

                Lincoln did have one small manumission program which compensated slaveholders in DC proper. But there was nothing on the table before the war for the Southerners.

                it sounds tough but consider the economics of this and ask was there another way? because compensation for former slaveowners was a workable proposition that was implemented in various other countries

                it was easier for those Yankee industrialists to pay the price in blood I guess. Other people’s blood.

                Well they got their way, which is just as well. but now they say we have to pay the debt again? reparations are on the list of Democrat proposals near the top. as if anybody today ever owned a slave or even met one. wow

  11. There was a discussion about whether or not the courts/justices should consider the impact on people, when they rule. Judge Barrett appears to believe yes. Suppose a law says Congress may declare certain parcels land to be free of residential structures. Over the years though, people kind of forgot about the law and thousands of homes were built on one such parcel. The case was brought before the courts. Should the ruling be influenced by the number of people who would lose their homes? I say no. What say you?

  12. When SCOTUS rules that Trump can exclude undocumented immigrants from the census we will see just how quickly these “originalists” abandon their principles for politics.

    1. When SCOTUS rules that Trump can exclude undocumented immigrants from the census we will see just how quickly these “originalists” abandon their principles for politics.

      Which black-letter constitutional provision does MollyG fancy would be contravened by Trump’s administrative measure?

      1. The Constitution says “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.”

        It does not allow for the exclusion of anyone except “Indians not taxed.”

        1. The 3/5ths rule was repealed by Amendment in 1868.

          Is it your position that the US Census should be counting the 50,000,000 yearly visitors to the United States? There simply weren’t itinerant visitors in 1868 when the Constitution was last amended as to who to count in the Census. So, the words in the Constitution, by originalist interpretation, are mum on the issue of whether visitors be counted.

          Yes, the honest originalist has no problem admitting that an issue of contemporary controversy is NOT SPOKEN TO in the Constitution.

          An example would be whether women and men have equal rights to serve in High Public Office (such as Supreme Court).
          Even though the conventional wisdom in 1789 was that only men occupy these Offices, among the listed qualifications noting was said about gender.

          1. Arty asked “Which black-letter constitutional provision does MollyG fancy would be contravened by Trump’s administrative measure?” I gave him what he asked for.

            You don’t need to tell me that the 3/5 rule was repealed.

            As for who is included, you would start by looking at who was counted by the 1870 Census, the first census after the passage of the Reconstruction Amendments. This issue has, of course, been addressed in prior Census counts. Surely you aren’t suggesting that foreigners are new to the US.

            Here’s what the Census says about it:

            FOREIGN CITIZENS IN THE UNITED STATES
            a) Citizens of foreign countries living in the United States – Counted at the U.S. residence where they live and sleep most of the time.
            b) Citizens of foreign countries living in the United States who are members of the diplomatic community – Counted at the embassy, consulate, United Nations’ facility, or other residences where diplomats live.
            c) Citizens of foreign countries visiting the United States, such as on a vacation or business trip- Not counted in the census.

            People who are living here illegally are part of group (a), not group (c).

            1. These Census counting rules are delegated by Congress to each Administration to adapt and change over time. The Secy. of Commerce has the final say on who should be counted vs. not counted. I hope you’re not arguing that the Census Rules from the Grant Administration are binding on the Trump Admin — in Statute (Title 13), Congress gives each Admin the authority to tweak the Rules. Secy. Ross (and President Trump) are doing just that.

              1. The rules were not changed. Enumerators counted illegal immigrants just as they have always. Trump wants to do an after the fact removal (even though no one knows how since the census did not ask immigration status) of illegal immigrants for representation distribution.

              2. Congress does not delegate total authority to the Commerce Dept., and the entire federal government is still bound by the Constitution. Neither Ross nor Trump can “tweak” rules in an unconstitutional way, and the final decision about whether their rules are constitutional is the Judicial Branch. It has already ruled against them, and now another case will be heard. The Trump Administration did not gather information about legal status, as the court ruled against that being asked on the census, and that may play a role in whether it can now attempt to manipulate the numbers without that information.

                Don’t pretend that this is a “tweak” when a court already ruled it wasn’t.

                1. The Court did not take up the issue of whether illegal immigrant counts should be included, or discounted towards apportionment. It was a rather narrow decision about the Admin having circumvented the Administrative Procedures Act in the manner it ordered the Citizenship Question to be included. The Court indicated that, if the APA were followed, the Census questionnaire could be amended. The Admin ran out of time to do so for the 2020 Census, it’s own fault for not budgeting enough time to follow the APA process with the deadline in mind.

                  Supreme Court cases are usually much narrower than the media portrays. And, you’ll learn almost nothing about the Court decisions by focussing only on who won / who lost. They’re not political decisions. They are about trying to manage a horrendously large and complicated Federal Code, and to work toward more organization, consistency, predictability, and fairness in the way it is applied by the lower courts in future cases.
                  Generally, that’s why SC takes a case (they turn down 999/1000 petitions for cert) — to bring some order to the chaos going on in the District and Appellate Courts.

  13. Always back to slavery …. but please point to the word “slave” or “slavery” in the Constitution.

    You can’t because the framers were amazingly prescient and mostly anti-slavery (or at least recognized its evil-ness) and purposely did not use that word. They used the words “Other Persons” to settle a difficult compromise that would have torn apart a potential union. Just 70 years later we would fight a war to fix the problem.

    The Constitution in NO WAY creates a right to “slavery” which is why every American can respect an originalist. The subtlety and care used in crafting the Constitution, by a group of people who could never imagine what would come, speaks to its extraordinary relevance in today’s world.

    PS Maybe be worried about actual slavery in today’s world. Read “Slave: My True Story: by Mende Nazir”… and stop disparaging the greatest nation on earth, the USA.

  14. “Originality”. What did the framer of article such and such of the first Constitution think and mean? Do we follow his original thoughts and meanings if he was a slave owner? Do we go to the original meaning of Amendments like the @3th Amendment which eliminated slavery and thus or thence ignore the first framers?
    None of this gets discussed.
    Professor Turley. Be a professor and think about this topic. Readers:. Respond.

      1. Your response ignores Liberty2nd’s request: that Turley act like a professor and write about whether the originalist philosophy holds water or has holes in it.

        People disagree on interpretations all the time. We see it in real time in these comments. The Founders aren’t here to clarify their meanings. How could any honest person insist that they know for certain what the writings of the Founders meant to the Founders? Why should we want to use the meanings of people who accepted slavery and bigotry on the basis of race, sex and class? Reading Madison’s notes doesn’t answer these kinds of questions.

    1. We know what the framers of the Constitution thought about slavery – they would have done away with it. So, remember the distinction between the people who framed the Constitution – and who would doubtless be very happy that its provisions now apply to all Americans – and those States whose intransigence on the issue forced the Three-Fifths Compromise.

          1. Anonymous … please point to the many things in today’s world that are different from 250 years ago and stay relevant. Slavery hasn’t existed here for almost two centuries. Why always focus on the extreme past and not on the present and the future to justify your stance? No society is perfect we but we live in the “more perfect” one.

            1. Originalists focus on the extreme past.

              Sounds like you disagree with judges like Barrett who are originalists.

              1. If originalist only focused on the extreme past slavery would still exist today. Originalist focus on the words of the Bill of Rights as the foundation of our nation. Bad legislation has been passed by both Democrats and Republicans. These pieces of legislation eventually make their way to the Supreme Court and are contested. At the time of the founding there were both small government (Conservatives) and large goverment (Liberals ) who owned slaves. The important thing that happened was that both Left and Right came to the conclusion that slavery was amoral. It wasn’t an eventuality that they would come to this realization. There are places in the world were slavery still exist. The difference is, that our founding principles pushed us to the idea that all men are created equal. This was the first time in history when men put pen to paper against there individual best interest. They knew that compromise must follow. We should search for such men and women today.

                1. There are probably more slaves in the world today than the entire population of the world in 1776. There were about the same amount of Africans sold to the West as were sold to the Muslim World. What happened to Africans sold to the Muslims? Hint look at demographics.

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