By Peter Gabel | October 19, 2020 (tikkun.org)
Amy Coney Barrett will not openly base her decisions on the Affordable Care Act, or Roe v. Wade, or the right to gay marriage on whether she herself agrees with the policies behind these cases. Instead, she will purport to base her decisions on her “originalism,” the view that the actual words of Constitution must be interpreted according to the original intent of the so-called Founding Fathers in 1789.
Why? Because according to her and her mentor Antonin Scalia, the only proper democratic interpretation of that document requires “finding the intent” of those who agreed upon it when it was signed (or when the Amendments to it were signed into law). Every broadening of the document beyond this narrow construal of the written words themselves is characterized, according to Scalia and affirmed by Barrett, as undemocratic judicial activism imposed on the document by unelected judges.
I myself heard Scalia say in a videotaped speech to the Federalist Society that there is no way we can know what each other thinks and agrees to besides attributing an objective meaning to words that people state when they write them down: he believed there was no binding moral claim that we have upon each other that can shape constitutional interpretation beyond the special words written mainly in the 18th century.
This worldview means that we human beings today must determine our relations with each other according to what a group of mainly 20 and 30 year-old white men, mostly wealthy slaveholders, thought were good and acceptable social relations about 250 years ago. The worldview has both a psychoanalytic meaning, and a day-to-day bureaucratic meaning within legal reasoning.
The psychoanalytic meaning is that the worldview reflects a fetish for our “Founding Fathers,” whose thoughts had a mystical value and prescience that we lesser beings must follow today.
The bureaucratic meaning reflected in the work of Barrett and others is that the judge must engage in the quite prosaic task of discerning the so-called “objective public meaning” of a group of words penned in and around 1789 and applying that ancient meaning to interpreting the validity of laws and statutes today, as well as to the text of the Constitution itself.
This latter bureaucratic aspect is what will enable Judge Barrett both to strike down progressive legislation like the Affordable Care Act, and refuse to extend constitutional protection to rights and activities not explicitly named in the original document or its amendments (such as the right to abortion and gay marriage). As a kind of legal philologist who simply interprets words from long ago according to their original public meaning, Barrett can say, “this activity is not liberal or conservative and does not reflect my opinions about these matters—it is rather just a matter of interpreting a text the only way it can be interpreted in accordance with democracy.”
Note that there is an irony about this justification of originalism in terms of democracy: Barrett is willingly participating in the grabbing of a Supreme Court seat while a democratic election is actually taking place, in part to determine who has the right to select a Justice for that very seat. If the true meaning of democracy were really of primary concern to her, she would refuse to accept this seat under these anti-democratic circumstances and instead insist upon waiting for the democratic election result.
But in any case, why should we care AT ALL about what a group of mainly 20 and 30-year old white male property-owning, in some cases slaveholders would think—as if we could know that—about what we are doing in the present-day world? Huge upheavals in society and consciousness have occurred in the last 250 years, with magnificent social movements rising up to advance the political and moral understanding of man-and-womankind. The idea that we should discard the wisdom that we have gained across all of that historical time when we today determine the meaning of the Constitution and the validity of democratically-passed legislation is just absurd on its face…or ought to be. Why then does “originalism” seem to have staying power as if it were a “legitimate position” to be solemnly agreed with or disagreed with?
The answer to that question has to do with the psychoanalytic meaning of originalism, the attachment that we are trained to feel toward the Founding Fathers and their Original Intent. I wrote a longer piece about this subject when the Original Intent theory was first being strongly advocated in the early years of the Reagan Revolution. In my article in the Buffalo Law Review called “Founding Father Knows Best,” I showed the relationship between fetishism of the Founding Fathers Original Intent and the growing authoritarianism that began in the early 1980s and is still with us in newer forms today (https://digitalcommons.law.buffalo.edu/buffalolawreview/vol36/iss2/4/).
Please here read a briefer statement of the ideas in that article published in the Tikkun magazine piece I wrote under the same title on the selection of Brett Kavanaugh in 2018 (https://www.tikkun.org/the-trouble-with-brett-kavanaugh-founding-father-knows-best). The same points I made there apply, of course, to Amy Coney Barrett’s judicial philosophy, an ideology of unconscious deference to Authority that seeks to impose that deference on the whole of American society. It is that philosophy and its socio-psychological underpinnings that must be engaged with and firmly rejected by progressives trying to build a new and socially just world that thoroughly transcends the moral limitations of the 18th century.
While the 18th century world view reflected in the “original public meaning” of the Constitution did help to advance human consciousness by putting forward a vision of human community that affirmed and protected the liberty of the individual from overt group coercion through government action (with the horrific exception of slavery itself), that world view utterly lacked a commitment to fostering a world based upon empathy and compassion, based upon our deep connection and care for one another and for the Earth as well.
The great social movements of the last 250 years beginning with abolitionism and continuing through the labor movement, the women’s movement, the LGBTQ movement, and the environmental movements have all carried within them an elevation of collective consciousness calling upon one another to truly see one another and fundamentally embrace each other’s common humanity as well as the sacredness of the natural world.
Contrary to the original meaning of the Constitution, these movements have not been fundamentally about extending individual liberty in an individualistic, monadic world, but rather about recognizing, affirming, and embracing each other’s humanity and our interrelatedness as social beings. It is the deeper social and spiritual awareness illuminated by these social movements that have elevated our collective moral consciousness since the Constitution was written, and it is this very elevated awareness that has been at the heart of the transformation of judicial interpretation of the Constitution, with judges responding to the demands of rising social justice movements to extend the meaning of existing Constitutional provisions like the First and Fourteenth Amendments far beyond long-surpassed original and outdated meanings. The constitutional validity of the pro-labor legislation of the New Deal, the legislation inspired by the demands for human equality emerging from the civil rights, women’s movements and LGBTQ movements, and the validity of social welfare legislation like Social Security, Medicare, and now the Affordable Care Act have all been manifestations of our sharing a greater collective wisdom about the moral bonds that unite us as social beings that were not in our collective awareness yet in 1789 and that has decisively influenced our subsequent interpretation of our culture’s foundational legal document.
In truth, this moral development of our collective consciousness is leading us toward the point where we must write a new Constitution or fundamentally transform the current one to place at its center not mere individual liberty in a world of the separated, but rather a new synthesis of individual liberty with caring for each other as moral partners in a sacred and socially-connected world.
The new emphasis on integrating spirituality, law, and social justice appearing in emerging new legal paradigms like Restorative Justice across the legal profession is a harbinger of this future rewriting of our Constitution, an expression of the growing awareness progressively dawning within us that “we the people” are “constituted” not as a mere collection of isolated individuals, but as a moral community founded upon love and mutual recognition and concern.
Until that future time comes when we can reconceive the Constitution altogether, we must embrace the liberal reinterpretations of the Constitution that judges like Ruth Bader Ginsburg, influenced by the transcendental aspect of the movements that have transformed the essence of our national community, have articulated in expanding the meaning of the existing Bill of Rights and the Civil War amendments among other legal doctrines. And we must decisively reject an “originalism” that denies the leaps forward in our common moral awareness that the great social movements of the last 250 years have bequeathed to us, movements of and within our common humanity that have been pointing us toward the Beloved Community that “we the people” must eventually become. We need your support to bring the kind of analyses and information Tikkun provides.
ABOUT PETER GABEL
Peter Gabel is editor-at-large of Tikkun. His most recent book, The Desire for Mutual Recognition: Social Movements and the Dissolution of the False Self (Routledge Press, 2018), was nominated for the Kirkus Prize as Best Non-Fiction Book of the Year.