Murphy, Hesse, Toomey & Lehane Associate and Recent Notre Dame Law School Graduate Breaks Down Legal Issues Raised by Justice Amy Coney Barrett Supreme Court Confirmation Hearing

Monday, October 26, 2020, Amy Coney Barrett was confirmed as a Justice of the Supreme Court of the United States. If you followed her confirmation hearings, you might have found yourself scratching your head thinking—what exactly is all this talk about “originalism” and “substantive due process”? Unlike any recent confirmation hearing for a Supreme Court Justice, Justice Barrett’s hearings included lofty discussions of interpreting the text of the Constitution and how certain fundamental rights, that many Americans have come to understand and expect from the Constitution, would be considered under Justice Barrett’s originalist perspective. The purpose of this article is to break down some of those pressing legal questions that were raised in Justice Barrett’s confirmation hearings and to delve into why some of those questions were raised.

What is the “originalist” approach versus the “living document” approach?

When making a decision on a constitutional issue, judges are forced to look at the text of the Constitution and make a determination of how that text applies to the legal issue presented to them. This might sound like a simple task—but the language of the Constitution is not always clear. In fact, often, the whole reason that the matter is before the court is because two parties have very different interpretations of what the text actually means.

To give the text of the Constitution meaning, judges have employed various strategies for interpreting its language. “Originalism” is one such method of interpretation and is frequently associated with the late Justice Antonin Scalia. During her confirmation hearings before the Senate Judiciary Committee, Justice Barrett, who teaches Statutory Interpretation at Notre Dame Law School and follows the originalism methodology, provided a brief overview of originalism:

“I interpret the Constitution as a law and…I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it, so that meaning doesn’t change over time.”

To expand upon this description, when using originalism as a tool for interpreting constitutional text, an originalist judge will consider the intent of the Framers—who were fifty-five male delegates that debated the contents of the Constitution—at the time the Constitution was signed in 1787.

Proponents of originalism argue that this form of interpretation is an objective exercise centered on the Framers’ original intent. During her hearing, Justice Barrett commented on this argument when she stated: “It’s not up to me to update it or infuse my own policy views into it.”

The largest camp of critics of originalists, the “living document” theorists, would argue that Justice Barrett’s assessment is not accurate. In fact, their argument is not that “living document” judges are per se adding their own policy views, but rather, they are considering the evolution of fundamental rights in the United States. Compared to 1787, this evolution of rights is certainly obvious for certain groups of Americans like the rights of African Americans, other Americans of color, women, Americans with non-Christian religious views, LGBTQ Americans, etc., who did not have voices during the constitutional debate and ratification process in 1787. In addition, other fundamental rights, like the right to privacy, have greatly expanded as America has become a more mobile and interconnected society since the signing of the Constitution in 1787. Ultimately, these living document proponents view the Constitution as a document that the Framer’s intended to evolve with an ever-evolving American society.

What really is “substantive due process” and why did it keep coming up in Justice Barrett’s confirmation hearing?

Throughout Justice Barrett’s confirmation hearing, the topic of “substantive due process” was frequently raised. This concept can be confusing even for constitutional law scholars. Basically, substantive due process deals with the protection of certain liberties, or rights, that are either specified in the Constitution or rights that the Supreme Court has drawn from the Constitution as integral to liberty. The first group of rights is “enumerated” rights. Enumerated rights are specified in the Constitution and its Amendments, like the freedom of speech. “Unenumeratedrights” are rights that the Supreme Court has carved out for the American people based on their relatedness to the notion of individual liberty. To carve out these unenumerated rights, the Supreme Court has utilized the 5th Amendment and 14th Amendment due process clauses of the Constitution (the “due process clauses”) which state that American citizens shall not be “deprived of life, liberty or property without due process of law.”

Substantive due process rights can be fundamental, which means that the Supreme Court will be very protective of these rights when they are challenged or threatened by the government. A substantive due process right can become fundamental when it has deep roots in American tradition and society and also contains elements of America’s historical conception of liberty. Most of the enumerated rights have been deemed fundamental by the Supreme Court. The unenumerated rights that the Supreme Court has deemed to be fundamental include the right to marry, procreate, use contraception, have access to abortion without an undue burden, make familial decisions on raising children, live with extended family, travel between states, and vote (which is particularly relevant for this upcoming election).

The reasons why “substantive due process” was discussed throughout her hearings is because of Justice Barrett’s originalist methodology. Certain originalists do not believe that the due process clauses of the Constitution (that American citizens shall not be “deprived of life, liberty or property without due process of law”) should be read so expansively as to create new, unenumerated substantive rights for Americans. With this context in mind and with a political climate in which both sides of the political spectrum are deeply concerned about their rights being infringed upon—it is understandable why Justice Barrett’s confirmation hearing dove so deeply into her own Constitutional interpretation methodology. A desire for certainty in these uncertain times is something that unites both sides of the aisle.


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