Judge Barrett testified that she understands the Constitution “to have the meaning that it had at the time people ratified it.” In response, Hillary Clinton tweeted, “At the time the Constitution was ratified, women couldn’t vote, much less be judges.” It’s not entirely clear what point the Yale Law School graduate thought she was making: Does she think that originalists don’t believe the 19th Amendment is binding? That they’re not aware that Article V sets forth a process for the Constitution to be lawfully amended?
Reader PJM emails:
I agree that it is ridiculous for the left to imply originalism would ignore amendments. In the spirit of your principle that we should address the other side’s best arguments rather than their worst, though, I think we should take their argument to be that we should not give dispositive force to the original public meaning of a document that, when adopted, allowed slavery, did not provide voting rights for women, etc. In other words, yes, an originalist gives effect to amendments, but why defer to what those slavery-tolerating, sexist men meant about anything, whether it has been formally amended or not?
I think there are good answers to that, e.g., that going outside the formal process for changing the law has no limiting principle and leads to chaos. But that is not an unreasonable question (vs. contending that originalists don’t take amendments into account, which is unreasonable).
This is a version of the more general (and hoary) argument that originalism forces us to be constrained by “the dead hand of the past.” I think there are, as my correspondent suggests, several serious flaws in that argument, even leaving aside the self-satisfied ingratitude it reflects.
For one thing, it’s not just an argument against originalism; it’s an argument against considering a written constitution binding at all. Why should we have presidential elections every four years because a bunch of slaveholders said so? Why do we owe any obedience to the government they created?
It also obscures the actual stakes at issue in a lot of constitutional controversies. The most politically salient of them concerns whether we should let today’s state legislators set policy, or be held back by the dead hand of Justice Harry Blackmun, in the matter of abortion. It’s the originalists who side with the living (and would allow them to protect generations unborn).