Prof. Andreas Teuber (PHIL):
Asked during her confirmation hearings about her judicial philosophy, a theory of interpretation she claims to share with her former mentor, Justice Antonin Scalia, and for whom she clerked in 1998-99, Amy Coney Barrett replied succinctly:
"That means I interpret the Constitution as a law. The text is text and I understand it to have the meaning that it had at the time people ratified it. It does not change over time, and it is not up to me to update it or infuse my own views into it."
But the Framers who met in Philadelphia in 1787 made room for amendments which suggests an openness to change, thereby contradicting Barrett's view that “does not change over time."
As Ronald Dworkin, one of our better legal theorists, liked to point out, if the Framers were interested in conveying what they meant, they would not have used such general terms, but found wording that was more specific. If they had truly wanted us to be guided by what they had in mind by freedom of speech, cruel and unusual or right and wrong, they would have done more than name the concepts.
Ben Franklin, who did not write a word of the text, saw the task as one of reaching agreement and the best way to reach agreement was to be silent on certain matters. In creating a national federal republic, the Framers do not mention "national," "federal" or "republic." The first pseudonym Franklin adopted was “Silence Dogood.” It might serve as an epitaph for the Constitution itself, which is marked as much by what the Framers left out as by what they put in, leaving many an originalist hard-pressed to come up with answers to their questions.
To make matters more difficult, the Framers imposed a “gag rule” on themselves during that summer and prohibited participants from publishing their notes afterward. And if this were not enough to preclude originalism from viability, many of the Framers had a theory of interpretation that runs counter to originalism which only came into vogue in the 1980s.
Madison, for one, saw himself as well as others at the Philadelphia Convention as "merely drafters," arguing in Federalist No. 37 that "all new laws … are considered as more or less obscure and equivocal, until their meaning be … ascertained by a series of particular discussions and adjudications." So the Constitution awaits its meaning.
For Madison, its meaning is found in a continuous process of interpretation and not in some meaning injected into it at its inception, as Barrett would have it.
The Constitution does not just mean. It goes on meaning and meaning.
The Constitution’s lack of specificity on any number of constitutional matters will enable Barrett as an originalist — just as it enabled her mentor, Scalia — to slip her conservative views surreptitiously under its cover.
Andreas Teuber is an associate professor of philosophy.