Judge Barrett on Constitutional Interpretation


Amy Coney Barrett
Taken from https://www.abajournal.com/news/article/trump-nominates-judge-amy-coney-barrett-to-the-u.s.-supreme-court 10/16/2020

Barrett on Constitutional Interpretation
Falco Anthony Muscante II

On September 26, President Trump nominated Judge Amy Coney Barrett of the Seventh Circuit Court of Appeals to fill the vacancy on the United States Supreme Court resulting from Justice Ruth Bader Ginsburg’s death.[1] Justice Ginsburg served as an Associate Justice from 1993, when former President Bill Clinton appointed her, until her death last month. In a press release from the Supreme Court the morning after her death, some of her colleagues reflected on her impact as “a tireless and resolute champion of justice,” who “paved the way for women to become lawyers and judges,” and will be remembered in part for “her intellect, her generosity, [and] her sly wit.”[2]

Like Justice Ginsburg, Judge Barrett “…is known for her keen intellect, piercing legal analysis, and generous spirit,” and has dedicated much of her professional life to constitutional and statutory interpretation.[3]  If confirmed by the Senate, she will be the fifth woman to serve on the high Court. Unlike Justice Ginsburg, who subscribed to a view of constitutional interpretation known as aspirationalism—or living constitutionalism—where the constitution is seen as a dynamic document that evolves and changes with the ebbs and flows of society, Judge Barrett is an advocate of textualism and originalism.[4]

The late Justice Antonin Scalia reinvigorated the interpretive philosophies of textualism and originalism during his term on the Supreme Court and through his 2012 book, Reading Law: The Interpretation of Legal Texts, and one of his most famous speeches, Originalism: The Lesser Evil (which can be found in David O′Brien’s Judges on Judging: Views from the Bench).[5] The difference between these two methodologies for understanding legal precedent is subtle. Textualism looks to the original public meaning of words and phrases used at the time when the Constitution was written.[6] Textualists often consult contemporaneous dictionaries of the 18th century and other primary source documents to understand how the words were used at that time.[7] Originalism is also concerned with the meaning of the text, but additionally looks to the meaning of the text as understood by its’ author(s).[8] With regard to the Constitution, originalists look to original sources like the ratification and constitutional convention notes and the Federalist Papers.[9] For statutory interpretation, originalists look to the meaning of the text as understood by the lawmakers and legislators.[10]

Judge Barrett clerked for Justice Scalia in the late 1990s and said that “His judicial philosophy is mine, too. Judges must apply the law as written. Judges are not policy makers.” [11] Judge Barrett understands her role as a judge as one in which she ought to read the law, understand the law as the legislators would have intended for it to be understood, and apply it commensurate to that understanding, as she illustrates through some dissenting opinions from the Seventh Circuit.[12]

In a case involving a 2019 rule promulgated by the Department of Homeland Security which would bar an individual from entry into the United States for accepting certain public benefits such as subsidized health insurance, supplemental nutrition benefits, and housing assistance, under the “public-charge” provision in the Immigration and Nationality Act, Barrett authored a lengthy dissent. [13] She disagreed with the majority’s decision because it “is belied by the term’s historical meaning—but even more importantly, it is belied by the text of the current statute, which was amended in 1996 to increase the bite of the public charge determination.”[14] The Immigration and Nationality Act would deny a noncitizen entry if he or she “is likely at any time to become a public charge.”[15] Barrett examined the long history of the phrase “public charge,” which she found had been consistently synonymous with “public expense” in the English law—denoting someone lacking self-sufficiency who became a burden to taxpayers.[16] This interpretation, she wrote, was adopted into American poor laws as well.[17] Essentially, the majority sought to define the term since the statute failed to explicitly note it’s meaning. At the end of Barrett’s dissent, she reiterated her view of a judge’s role in interpreting legislation: “[l]itigation is not the vehicle for resolving policy disputes.”[18]

In Kanter v. Barr, where the court was asked whether the protections offered under the Second Amendment applied to convicted criminals, Barrett penned another long dissent, based in part on an originalism, that began with a look at how the Second Amendment was understood by founding-era legislatures to apply to criminals.[19] She wrote, “The best historical support for a legislative power to permanently dispossess all felons would be founding-era laws explicitly imposing—or explicitly authorizing the legislature to impose—such a ban. But at least thus far, scholars have not been able to identify any such laws. The only evidence coming remotely close lies in proposals made in the New Hampshire, Massachusetts, and Pennsylvania ratifying conventions.”[20] She went on to analyze various state convention debates regarding limiting language that did not end up making its way into either the Second Amendment or state constitutions.[21] After this analysis, Barrett concluded that a convicted felon could only be deprived of his or her Second Amendment rights if it is proven that he or she would be dangerous if armed.[22]

In the coming weeks as Barrett continues to meet with Senators leading up to her confirmation hearings, her prior decisions, writings, and ideas of constitutional interpretation will be examined and questioned. If she is indeed confirmed for a lifetime appointment to the Supreme Court of the United States this month, it is likely that Judge Amy Coney Barrett will bring her interpretive philosophies of textualism and originalism to the bench, consistent with her past writings, as guiding principles for interpreting and applying the laws of the land.


[1] https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-announces-intent-nominate-judge-amy-coney-barrett-supreme-court-united-states/.

[2] (https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_09-19-20.

[3] https://www.whitehouse.gov/presidential-actions/president-donald-j-trump-announces-intent-nominate-judge-amy-coney-barrett-supreme-court-united-states/.

[4] https://www.heritage.org/courts/commentary/liberalism-originalism-and-the-constitution; https://www.yalejreg.com/nc/judge-amy-coney-barrett-on-statutory-interpretation-textualism-precedent-judicial-restraint-and-the-future-of-chevron-by-evan-bernick/.

[5] Antonin Scalia, Originalism: The Lesser Evil, in Judges on Judging: Views from the Bench 209 (David O′Brien ed., 5th ed. 2017).

[6] https://fas.org/sgp/crs/misc/R45129.pdf.

[7] Maggs, Gregory E., A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358, 359 (2014).

[8] Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cinn. L. Rev. 849, 854 (1989).

[9] Id. at 858-59.

[10] Id. at 854.

[11] https://apnews.com/article/ruth-bader-ginsburg-us-supreme-court-courts-gun-politics-antonin-scalia-726bd0316cd646927b93137575c92966.

[12] https://www.usatoday.com/story/news/politics/2020/10/05/amy-barrett-we-watched-hours-her-speeches-heres-what-we-learned/3596731001/.

[13] Cook Cnty. v. Wolf, 962 F.3d 208 (7th Cir. 2020) (Barrett, J., dissenting).

[14] Id.

[15] Id. at 215 (citing 8 U.S.C.S. § 1182(a)(4)(A) (LexisNexis, Lexis Advance through Public Law 116-158, approved August 14, 2020)).

[16] Id. at 241.

[17] Id. at 239.

[18] Id. at 254.

[19] Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019) (Barrett, J., dissenting).

[20] Id. at 454.

[21] Id.

[22] Id.

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