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States rights, Roe v. Wade, women’s rights, same sex marriage, these are all hot button issues that put conservatives and liberals at odds with each other and polarize court decisions. But is liberalism and conservatism the real issue when deciding these matters?

Jurists are forbidden by law from ruling based on personal beliefs and it is unconstitutional to impose a religious test on anyone who holds public office. A justice’s interpretation of the Constitution or constitutional theory is what guides their decision-making process.

The Hon. Ruth Bader Ginsburg passed away on Sept. 18, 2020 and left a physical and ideological vacuum in the U.S. Supreme Court.  Known as a proponent of a “living constitution,” the belief that the U.S. Constitution adapts to the times, taking on different meanings depending on when it is interpreted, Justice Ginsburg viewed the Constitution through the lens and mores of the 20th/21st century.   

Her approach was precise, with a clear respect for the letter of the law.  However her interpretation included people the writers of the Constitution never intended.

“The words of the 14th amendment equal protection clause, ‘nor shall any state deny to any person the equal protection of the laws,’” Ginsburg said, “Well that word, ‘any person’ covers women as well as men and the Supreme Court woke up to that reality in 1971.”

This quote is an example of how Justice Ginsburg took our constitution, written by landed, white, protestant men for landed, white, protestant men and made it applicable and beneficial to all Americans. This, however, is in stark contrast to the Originalist interpretation of the constitution, which is held by Trump’s supreme court nominee, Amy Coney Barrett.

Originalism, as defined by Barrett, means that “the meaning of the law is fixed as of the time it is ratified and that the original meaning of that law controls if it is discernible,” Barrett said. This means that if a law written in 1787 which has not had a Constitutional amendment to change it, and the intent is clearly discernible, according to Barrett, she is bound to interpret it the way the writers intended it when they wrote it in 1787. This is cause for real concern.

Our nation in 1787 was absolutely not the multicultural melting pot it is today.  The Bill of Rights was never intended to apply to African Americans or women.  In the preamble to the Constitution when it states that, “All men are created equal…” that didn’t include women or people of color.

“The truth of it is, foundationally, there is no real way to have a functional democracy and to think about equality in our nation were we to be strict conservatives on … originalism,” Law Professor Michele Godwin said.“That would mean shutting out women… and people of color entirely,” Godwin said.

Bruce Ledewitz, constitutional law professor at Duquesne University in Pittsburgh, PA has concerns about Barrett’s originalism. 

“I worry about people who call themselves originalists,” Ledewitz said, “If somebody says ‘I am an originalist’… it sounds like it’s a religion, a dogma.”

The establishment clause of the first amendment prohibits jurists from respecting any establishment of religion or prohibiting the free exercise thereof and Barrett, despite her Roman Catholic and pro-life beliefs, has made it clear that her personal beliefs do not interfere with her judicial decisions. 

“It seems to me that the premise of the question is that people of faith would have a uniquely difficult time separating out their moral commitments from their obligation to apply the law,”  Barrett said, “and I think people of faith should reject that premise.”

Barrett goes on to say that separating personal convictions, regardless of religious affiliation, is something that all judges need to be vigilant in doing. “That’s a challenge for those who have faith and those that have no faith,“  Barrett said.

Neither Ginsburg nor Barrett allow politics to interfere with their interpretation of the law, however many believe that the nomination process is increasingly politicizing the court.

“The Trump administration has demeaned the process and undermined the legitimacy of the court [and] I’m afraid it will lead to court packing,” Ledewitz said, referring to the idea of expanding the court by increasing the number of justices.

The idea of court packing is not new. It was originally proposed by President Franklin D. Roosevelt in 1937, who wanted to expand the court from 9 to as many as 15 justices. With President Trump’s unprecedented push to have Barrett confirmed before the election, the idea of court packing is gaining popularity among democrats and is seen as a defensive move against republican actions.

“The Constitution that results from a very strong president and a weak congress and a super strong court is one that is exactly what Donald Trump wants because it will support him,” Georgetown University’s Professor of Law, Victoria Norris said, one of the nation’s leading scholars on separation of powers. “That’s why we need to push back.”

Many of the concerns the United States faces today like racism and sexism have already been remedied by constitutional amendments as Barrett’s Originalist interpretation says they should be. Slavery ended with the 13th amendment and African American men were given equal protection under the law and the right to vote with the 14th and 15th amendments. Women were given the right to vote with the 19th amendment. So it would seem that ultimately the system worked and Barrett is right.  

However, considering the country’s current social and political unrest (i.e., the murders of George Floyd and Briana Taylor, border detention centers for illegal immigrants, the resurgence of white supremacy groups, etc.) our freedoms are being threatened and violated on a daily basis.

Americans who want to retain these freedoms for everyone, and not just the [insert privileged group of choice here], need to remain vigilant and we need justices who will be vigilant for us.

Ruth Bader Ginsburg, the notorious RBG, was definitely a jurist who rose to the challenge, but could Amy Coney Barrett?  My jury is still deliberating.

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