GEORGETOWN LAW PROF TAGS BARRETT’S ‘ORIGINALISM’ AS NONSENSE

A Georgetown University law professor has tagged US Supreme Court (SC) nominee Judge Amy Coney Barrett’s “originalism” philosophy in the bench as “complete nonsense.” Writing for Salon, Kevin Tobia said Barrett will not only erode the established rights of women and LGBTQ+ persons based not only on her conservatism but also on her dictum that “a judge must apply the law as written, not as the judge wishes it were.”

Tobia added: “Barrett is an originalist and textualist, who prioritizes ‘what people understood words to mean at the time that the law was enacted.’ In pointing outward to the people, originalism conveys an alluring humility. Originalism is not personal; its conclusions reflect the objective fact of “’public meaning.’” Technically, “originalists” must freeze “public meaning” to refer to concepts and concrete objects existing in 1787, when the US Constitution was drafted. Originalism’s flexibility and fictionalism or even her legal corpus linguistics are especially troubling in its relationship to settled law. Barrett has written cautiously about the “tension” between originalism and precedent. She is certainly a committed originalist, approvingly citing G.K. Chesterton: “a thing worth doing is worth doing badly.” Originalism is worth doing, even if it is originalism done badly.

Tobia debunked the entire “originalism” theory by saying that his experiments have shown that “originalists” are not right about facts and thus could not contemplate what “public meaning” means. The results of his study, set to be published in an article for the forthcoming issue of Harvard Law Review, showed that the tools originalists rely upon support false conclusions about public meaning — and often conflict with each other. “Until originalists like Barrett articulate better methods, Americans have no good reason to believe the theory is succeeding, even on its own terms,” he added. He noted that originalism’s public meaning theory would collapse since people do not have a common definition for vehicle, and whether a plane, a car, a pram or a trolley would qualify as a “vehicle.”

He tested whether these tools actually reflect public meaning today. Three groups participated in an experiment. The first made judgments about vehicles (e.g., ‘Is an airplane a vehicle: Yes or no?’). The second made judgments equipped with a dictionary definition of ‘vehicle’ and the third with data from legal corpus linguistics (e.g., data about how the word ‘vehicle’ is most commonly used). Those groups reached radically different conclusions. For example, about 50% of people today say that a canoe can be defined as a vehicle. Yet, nearly all participants using a dictionary definition reached that judgment (95%), while nearly all the participants using the corpus linguistics data reached the opposite judgment (only 10% agreed). Similar divergences arose across many different examples, and across groups of ordinary Americans, law school students and US judges.