Amy Coney Barrett's Case for Originalism Falls Short

U.S. Supreme Court Justice Amy Coney Barrett's new book, Listening to the Law: Reflections on the Court and Constitution, offers a readable, if sometimes uneven, mix of memoir and manifesto. To her credit, Barrett directly addresses a number of controversial topics that are sure to interest most readers, including abortion and the death penalty. At the same time, however, her broader case for her preferred judicial philosophy leaves something to be desired.

Barrett's preferred judicial philosophy is originalism. Here's how she describes it:

Does interpreting the Constitution today require us to understand its historical meaning? Is it even possible to do so? And assuming that we can determine what the document meant when it was originally adopted, how can we apply it to the problems of the modern world? Though none of these questions is easy, I think the answer to all of them is yes.

So far, so good, at least as far as popular definitions go. But things quickly go wrong once Barrett tries to illustrate how the Supreme Court has fallen short of originalism by supposedly substituting its own views for the original constitutional text.

Her key example of this alleged judicial malfeasance is the case of Lochner v. New York (1905), in which the Supreme Court struck down a state economic regulation on the grounds that it violated the right to economic liberty that was secured by the Fourteenth Amendment. "Courts owe deference to legislative majorities in determining how to handle economic and social problems," Barrett writes in opposition to Lochner. The Supreme Court "must not infringe on the democratic process by entrenching issues that the Constitution leaves open."

Barrett thus favorably invokes, and cites, the Lochner dissent written by Justice Oliver Wendell Holmes Jr., who thought the Supreme Court had no business second-guessing the decisions of state regulators and should instead adopt a thoroughgoing posture of judicial deference.

For an originalist, the central question raised by Lochner is whether or not the Fourteenth Amendment, as originally understood, protects an unenumerated right to economic liberty.

According to the Holmes-Barrett view, the Fourteenth Amendment does not.

But the historical evidence says otherwise. According to the principal author of section one of the Fourteenth Amendment, Rep. John Bingham (R–Ohio), "the provisions of the Constitution guaranteeing rights, privileges, and immunities" include "the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow men, and to be secure in the enjoyment of the fruits of your toil."

Furthermore, as I've previously noted, "even those who opposed the passage of the 14th Amendment agreed that it was designed to protect economic liberty from overreaching state regulation—indeed, that was a big reason why they opposed the amendment in the first place." When both the friends and foes of a constitutional provision agree in real time about what it meant, their agreement counts as important historical evidence for the provision's original public meaning. In this case, such evidence supports the position of the Lochner majority and undermines the position of the Lochner dissent.

Alas, Barrett's book doesn't mention any of this relevant historical material. Instead, she basically just echoes Holmes's ahistorical dissent and leaves it at that.

That's too bad. As Barrett herself put it, "interpreting the Constitution today require[s] us to understand its historical meaning." Yet Barrett neglects to do that very thing in one of the main cases she invokes to support her position.

Self-described originalists do not, to say the least, do their side any favors when they fail so conspicuously to practice what they preach.

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