‘Listening to the Law’ Review: A Humbler Reading

Justice Amy Coney Barrett, an ‘originalist’ in the mold of her onetime boss, Antonin Scalia, makes the case for the Constitution

By Barton Swaim. Excerpts:

"how difficult it is to fashion a constitution that is both practicable and secures the esteem of the governed. The framers achieved both, she argues, by giving the people the ability to alter the Constitution—the amendment process in Article V—and by quickly amending it with the Bill of Rights. By adopting the first 10 amendments, Justice Barrett argues, “the founding generation made the Constitution a more morally laden document.”" 

"On judicial humility, Justice Barrett makes the case for a conservative or restrained version of “substantive due process.” Judges have sometimes deemed laws unconstitutional because they violate some unenumerated right, i.e., a right not named in the Constitution. Their argument is that certain fundamental though unenumerated rights are protected by the “due process clauses” of the Fifth and 14th Amendments, which forbid federal and state governments from depriving persons of their liberty “without due process of law.” The Court struck down laws banning interracial marriage partly on that basis in 1967."

"The trouble, Justice Barrett explains, is that “judges can easily slip into naming fundamental rights based on the values of people they know and respect rather than the value of the vast and diverse American citizenry.” The standard for invoking an unenumerated right, she contends—quoting two phrases Chief Justice William Rehnquist borrowed in Washington v. Glucksberg (1997)—is that such rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”"

"The only justices still routinely arguing as if from a “living constitution”—i.e., that the law must mean this or that because what its authors really wanted was some alleged happier outcome—are Justices Sotomayor and Jackson. Justice Elena Kagan, a liberal, often bases her arguments on the text’s original public meaning, as do leading liberal law professors such as Yale’s Akhil Reed Amar."

" It is plainly impossible to know the intention behind a law written, debated, amended and voted on by scores or hundreds of people. Moreover, “a judge who tweaks the text to improve its fit with statutory purpose risks undoing the very compromises that made the passage of legislation possible,” she writes. “There is no way for the judge to know whether its new, supposedly improved version would have made it into law.”"