We are getting prepared for the Senate to give President Trump advice and consent on his newest nominee, Amy Coney Barrett, who by all accounts is an outstanding choice. Philip Jauregui of the Judicial Action Group, who has been monitoring Supreme Court nominees for a long time, says Barrett is the best nominee he’s ever seen.
Perhaps the preeminent qualification Barrett brings to the bench is that she is an originalist, committed to interpreting and applying the actual text of the Constitution as the Founders intended it to be understood and applied. This column and the several to follow are about why having originalist justices on the bench is so important.
The two books I take into the studio every day
When I go on the set of my daily radio show, I always take two books with me: the Bible and the Constitution. The first is the authoritative guide for all of life. It holds ultimate authority even over the Constitution itself, should the two ever disagree, and over the Supreme Court should the two ever disagree. For instance, abortion is morally and ethically evil regardless of what the Court says, and marriage is between a man and a woman, no matter what the Court says.
The second book I take into the studio is the Constitution. It is the authoritative guide for our common and shared political life as Americans. It is the supreme law of the land. It holds authority over laws passed by Congress, should they conflict, and it holds authority over Supreme Court rulings should they ever conflict.
As I often point out, one of these books is much larger than the other, for the simple reason that it’s way more important. Plus we haven’t had to amend the Word of God even once, let alone 27 times.
We all admit that the Constitution, as inspired as it may be, is not inspired in the same sense the Scriptures are. The Bible claims that “All Scripture is breathed out by God” (2 Timothy 3:16) and is therefore flawless and without error. It is, according to Psalm 19:7-9, “perfect...sure...right...(and) true.” As the book of Proverbs puts it, “Every word of God proves true.”
As unique and priceless as the Constitution is, we do not elevate it to the same plateau of inspiration as the Scriptures. Not even the Founders believed the Constitution was perfect in every respect because they included an amendment process by which any flaws in the Constitution could be addressed. In fact, they amended it ten times just two years after they enacted it. We call these first ten amendments the Bill of Rights.
Here’s the foundational point: if we want to change the Constitution for whatever reason - say, for instance, because our societal values have changed on slavery, the election of senators, the income tax, women’s suffrage, or alcohol - we change the Constitution. We amend it. We don’t ignore it, pretend it doesn’t say what it clearly says, or ask the Supreme Court to amend it for us through judicial imposition.
How to interpret the Constitution
I write not as a lawyer but as an ordinary American who can read. The Founders, after all, did not write the Constitution for legal scholars. They wrote it in ordinary, plain English for ordinary Americans like you and me.
Nor am I writing for legal scholars, although they all should agree with the views expressed in this column. No, I am writing not only as an ordinary American who can read but also for other ordinary Americans who can read.
I follow the wisdom of Thomas Jefferson in his advice to Judge William Johnson on interpreting the Constitution: “On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit of the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” If we do not understand the Constitution as the Founders intended it to be understood, we do not understand it at all.
And if we don’t understand it as the Founders intended it to be understood, then the Constitution can mean anything the untethered minds of the Court can construe it to mean. In a letter to Spencer Roan in 1819, Jefferson addressed the conceit that the Constitution does not mean what the Founders meant but whatever the Supreme Court decides it means. “The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.”
I will refer in what follows to the Federalist Papers. They were written in 1787 and 1788 by Founding Fathers Alexander Hamilton, James Madison, and John Jay to urge New Yorkers to ratify the just-proposed Constitution. It is an invaluable and indispensable aid to understanding the Constitution. In fact, it is impossible for us to understand the Constitution without them.
Amy Coney Barrett, through the lucidity of her written opinions, will help all of America understand the Constitution as the Founders intended it to be understood. She can’t be seated on the bench a moment too soon.
The author may be contacted at email@example.com