Justice Barrett Believes in a Living Constitution Based on Whims?


Politico reports that Amy Coney Barrett may be poised to split conservatives on the Supreme Court because she may not be the originalist she claimed to be.

Progressive Woodrow Wilson began the idea of an activist Justice and a living Constitution. Read “America Transformed,” subtitled “The rise and legacy of American Progressivism.”

Justice Amy Coney Barrett and Justice Clarence Thomas appeared to be squaring off on the issue of originalism.

Originalism is the principle or belief that a text should be interpreted in a way consistent with how it would have been understood or was intended to be understood at the time it was written. It is the opposite, or activism and writing laws from the bench.

Barrett recently was very confrontational with Thomas over a minor case about trademarking crude anti-Trump T-shirts. It was so aggressive that at least one legal observer said it seemed to be more than just about the T-shirt free speech case.

Justice Clarence Thomas wrote an opinion that was joined in large part by most of their conservative colleagues and emphasized the tradition of allowing individuals control over trademark protections related to their names. While Justice Barrett agreed with the decision, she wrote that she saw less relevance to the history. She ultimately concluded that the restriction passes constitutional muster. Each of the three liberal justices signed onto at least some of Barrett’s concurrence.

Notably, just two years ago, Barrett appeared to be fully on board with the originalist approach that Thomas has long championed.

Here she is in 2020 during her hearing:


Barrett joined the conservatives in the Dobbs and the Bruen decisions. Only now she is signaling that there are limits to the utility of history. Barrett looks at today’s hard constitutional questions from a living constitutional perspective. [Our Bill of Rights is not up for grabs.]

On the question of upholding a gun restriction aimed at domestic abusers, Barrett and at least one other conservative might pivot away from Bruen.

A year ago, in a case involving the admissibility of confessions by conspirators, Barrett again accused Thomas of making too much of a very limited historical record.

“The court over claims. That is unfortunate,” Barrett wrote in a solo concurrence, referring to Thomas’s majority opinion. “While history is often important and sometimes dispositive, we should be discriminating in its use. Otherwise, we risk undermining the force of historical arguments when they matter most,” she declared.

In a speech last year at Catholic University, Barrett repeated the point. “We have to be very, very careful in the way that we use history, she said. She added that deploying historical evidence to advance a legal conclusion can be like “looking over the crowd and picking out your friends.”

The quarrel between Barrett and Thomas could impact Trump’s claim of presidential immunity.

Catholic University law professor Jennifer Mascott clerked for Thomas at the Supreme Court. She also clerked for Kavanagh while he was an appeals court judge. She said, “It does seem to me that Justice Barrett is trying to lay down a marker of at least some limitation or clarity in terms of where she and the others on the court see history and tradition moving in the future. Justice Barrett is basically raising questions that could really shift and perhaps limit the impact of the way specific historical examples are used.”

After a few years, the Justices change their views. They always seem to move left, with the exception of people like Justices Alito, Thomas, and Gorsuch. Either they changed, or they weren’t completely honest in the beginning.

Conservatives had qualms about Kavanaugh and Barrett. There have also been some remarkably liberal decisions by Chief Justice Roberts. Analysts believe that Roberts and Kavanaugh are closer to Barrett’s view on the utility of history than they are to the originalism of Thomas and Alito.

That doesn’t bode well for the future. If constitutional law can be “living,” then it is subject to the whims and feelings of the future generations.

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