Is Amy Coney Barrett an 'Orginalist' Like Her Mentor, Antonin Scalia Was Supposed to Be?

Senate Confirmation Hearings for Amy Coney Barrett, October 13, 2020

I recently completed the book, The Quartet, by Joseph J. Ellis. It is a very readable description of the parts George Washington, Alexander Hamilton, John Jay, and James Madison, among others, played in orchestrating the creation of a nation, from a loose confederation of states whose occupants retained their suspicions and outright antipathy towards centralized control. After all, they’d just fought and died to wrest control from what they considered an overbearing a sovereign in the person of George III of Great Britain.

Ellis writes that, James Madison, in a long letter to Thomas Jefferson, “described the hybrid creature that the Constitution had created as part confederation and part nation.” Unfortunately or fortunately, depending on one’s political leaning, no one knew where the demarcation on state versus national sovereignty lay. Ellis goes on to write,

“In the long run — and this was Madison’s most creative insight — the multiple ambiguities embedded in the Constitution made it an inherently 'living' document. For it was designed not to offer clear answers to the sovereignty question (or, for that matter, to the scope of executive or judicial authority) but instead to provide a political arena in which arguments about those contested issues could continue in a deliberative fashion. The Constitution was intended less to resolve arguments than to make argument itself the solution.” Ellis goes on, “For judicial devotees of 'originalism' or 'original intent,' this should be a disarming insight, since it made the Constitution the foundation for an ever-shifting political dialogue that, like history itself, was an argument without end. Madison’s 'original intention' was to make all 'original intentions' infinitely negotiable in the future.”

I would like very much for Amy Coney Barrett to be asked a cogent question about her position on “originalism.” I doubt she would answer the question, however, even if she had a position on it. Her mentor, the late Antonin Scalia, was considered an originalist, but his rulings reflected rather a more pragmatic view of what stance would get him where he already wanted to go (see Richald L. Hasen’s new book on Scalia).

Barrett will be confirmed by the Senate, likely on a party-line vote. She will exercise an out-sized influence on future SCOTUS decisions by virtue of the Court's 6 - 3 conservative majority and the fact that other conservative judges can count on her unwavering support for a 1788-era interpretation of the Constitution.