Saturday, October 17, 2020

Judge Barrett's Confirmation Hearing Redoux and Originalism's Folly

By Eric Segall

Senator Smarty Pants (SSP): Judge Barrett, would you please explain your judicial philosophy to us?

Judge Amy Coney Barrett (ACB): Sure, I'd love to. Judges should interpret the text according to its original public meaning.

SSP: Okay, so let’s talk about the original public meaning of text of the 14th Amendment. Do you know what the Amendment says?

ACB: I’m sorry I can’t answer that.

SSP: How about I give you my pocket Constitution so you can read it?

ACB: I was just playing with you. I know what it says.

SSP: Good one! Okay, so whether we are talking about the equal protection clause or the privileges or immunities clause, do you think the 14th Amendment provides equal rights to women.

ACB: Now that one I really can’t answer.

SSP: Why not?

ACB: The issue might, possibly, at some point in the next 50 years could maybe, possibly be tangentially related to a case that maybe, might, possibly, at some point come before me.

SSP: Okay then, let’s try this a different way, are you aware that in 1868 women had no constitutional right to vote, were barred from many occupations, and in many states wives could not own property separately from their husbands?

ACB: I cannot affirm or deny any of that.

SSP: Well, all those things are true. Now are you aware that in 1868 the dominant opinion by far was that the 14th Amendment did not not change any of that?

ACB: I cannot affirm or deny.

SSP: Well, The Fourteenth Amendment also added a sex-based distinction into the Constitution for the first time. It declared that all male citizens over twenty-one years old must be able to vote or else a state could lose a proportionate share of its representation. The insertion of the word “male” into the Constitution presented new challenges for women’s rights activists. For the first time, the Constitution asserted that men—not women—had the right to vote. Are you aware of that history?

ACB: I can’t talk about history.

SSP: I thought you were an originalist?

ACB: That does not mean I know anything about history.

SSP: Fair point. But let's go back to 1868. If people at the time thought the original public meaning of the 14th Amendment did not alter the second-class nature of women's status in society, then should women have equal rights today?

ACB: I can't answer that.

SSP: Why not?

ACB: It is an academic question so I can't answer it.

SSP: Do you think the VMI case which held a state-operated military college couldn't exclude women was correct?

ACB: I can't answer that.

SSP: Why not?

ACB: A similar case might come before me, so that is not an academic question.

SSP: So you cannot answer academic or non-academic questions.

ACB: I can't answer that.

SSP: What?

ACB: I can't answer questions about why I can't answer questions.

SSP: Seriously?

ACB: Naw, just playing with you. I can't answer questions about real life or hypos.

SSP: Why not?

ACB: That's not how this works.

SSP: Judge Barrett do you believe in gravity?

ACB: What do you mean?

SSP: Do you believe that gravity stops me from donning paper wings and flying around (SSP waves his hands) this two-ring circus.

ACB: I can't answer hypotheticals.

SSP: So you don't believe in gravity?

ACB: I can't answer that.

SSP: Let's talk a little more about what you call your own judicial philosophy. You identify as an originalist correct?

ACB: Yes, I do.

SSP: You can answer that question?

ACB: Proudly. I am the second proudest Originalist ever.

SSP: Who's the first?

ACB: I can't answer that.

SSP. Okay, public flogging was allowed in 1789, and was not considered by the people at the time cruel and unusual punishment. Would public flogging be constitutional today?

ACB: Well I can't answer that other than to say that just because the people in 1789 thought flogging was constitutional does not mean it is constitutional today. We are not bound by the expectations of the people back then, just the public meaning of the words they wrote.

SSP: The public meaning circa 1789?

ACB: Yes. 

SSP: But you don't deny as an historical matter that flogging did occur back then and it was not considered cruel and unusual punishment?

ACB: I can't answer the historical question but I can say what matters is the words they wrote, not what they expected them to mean.

SSP: Okay, are you aware that Article I, Section IV of the Constitution says: "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."

ACB: If you say so.

SSP: I am reading from the pocket Constitution in my hands.

ACB: I cannot affirm or deny you are doing that.

SSP: You are looking right at me!

ACB: I cannot affirm or deny that but to get this over with I will assume the Constitution says what you say it says.

SSP: Okay, so under Article IV does the federal government have an obligation to help the states combat "domestic violence" today?

ACB: Come on Senator, everyone knows that domestic violence back then meant military uprisings, not men physically hurting women.

SSP: How do we know that?

ACB: We have all kinds of evidence the framers were worried about local uprisings.

SSP: I thought we cared about what they wrote, not what they expected.

ACB: Well, context is always important.

SSP. Okay. The context of flogging was that they thought it was fully legal.

ACB: That's different.

SSP: Why?

ACB: I really, really can't answer that.

SSP: Why not?

ACB: Because.

SSP: Okay, Judge Barrett one last line of questions. You signed a document that said life begins at fertilization did you not?

ACB: I can answer that!! Yes.

SSP: So you think life begins at fertilization?

ACB: I can't answer that.

SSP: Did you believe it when you signed the advertisement?

ACB: I signed it is all I can say.

SSP: So you are not willing to answer any questions about that document that you signed other than whether you signed it or not?

ACB: Yes.

SSP: So let me see if I can sum up your testimony. You can't answer academic questions, you can't answer non-academic questions, you can't discuss written statements statements that you signed, and you can't tell us whether you think gravity is real? Is all of that true?

ACB: I can answer yes to that question.

SSP: Thank you Judge Barrett.

5 comments:

  1. To be clear, she has no agenda!

    SSP: The people who chose you over others do ...

    ACB: Well, only one did ...

    SSP: I was thinking of the Federalist Society, which a Billy Joel loving law professor I know has a special interest in ...

    ACB: You mean the debating society?

    SSP: Let's not forget the good food at their college meet-ups.

    ACB: Well, it's why I went there ...

    SSP: Sigh. I rather watch baseball.

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  2. Professor, thank you for capturing this 'surreal' nomination hearing and its 'folly' of originalism. In my view it stands as a satire of note; it cuts through days of testimony with a sharpness of thought that is easy to read and hard to achieve. And thanks for bringing a smile to me as I read this post.
    It brought to mind some lyrics of a song from many years ago. ( A nod to Professor Buchanan who in a post referred to the lasting impact of American music of the 60s era)
    It captures my feeling (with the caveats of subject matter, etc.):

    'When logic and proportion have fallen sloppy dead
    And the White Knight is talking backwards'

    - White Rabbit, Jefferson Airplane

    Having cited this, I find your post refreshing, explicit, and accurate.

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  3. I share Frank's sentiment above. I have long puzzled over how and why someone as smart as Larry Solum can believe in Originalist constitutional theory, indeed, be one of its foremost defenders (in both the world of legal theory and public fora, of late, for example, his op-ed in my beloved LA Times).

    ReplyDelete
  4. It was flagged elsewhere that she actually blogged a bit ...


    https://prawfsblawg.blogs.com/prawfsblawg/2020/10/prawfs-moment-in-the-sun.html

    ReplyDelete
  5. Thanks folks for you kind comments. Professor Solum doesn’t deal with real cases very often and his work is at times absurd for that reason. Also, for lawyers and judges of course the meaning of imprecise text can’t be fixed, what an absurd thought.

    ReplyDelete

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