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Constitutional originalism is a flawed concept | READER COMMENTARY

In this Oct. 14, 2020, photo, Supreme Court nominee Amy Coney Barrett speaks during a confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington. Barrett served for nearly three years on the board of private Christian schools that effectively barred admission to children of same-sex parents and made it plain openly gay and lesbian teachers weren’t welcome in the classroom. (AP Photo/Susan Walsh, Pool)
In this Oct. 14, 2020, photo, Supreme Court nominee Amy Coney Barrett speaks during a confirmation hearing before the Senate Judiciary Committee on Capitol Hill in Washington. Barrett served for nearly three years on the board of private Christian schools that effectively barred admission to children of same-sex parents and made it plain openly gay and lesbian teachers weren’t welcome in the classroom. (AP Photo/Susan Walsh, Pool) (Susan Walsh/AP)

Jonah Goldberg (“Amy Coney Barrett’s ‘originalist’ stance is the only one that makes sense,” Oct. 16) quotes Judge Amy Coney Barrett: “'So in English,' she explained, ‘that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it,’” Goldberg writes. “I don’t see why this should be a difficult concept to understand.”

But it is a difficult concept. To understand the text, you need to know the context. How else can “the meaning that it had at the time people ratified it” be determined? And we know that the people who ratified the Constitution did not necessarily agree with each other on its meaning. Events showed, for example, that South Carolina and Massachusetts had very different ideas about the powers the Constitution conferred on the federal government. It is also true that the framers may have left the meaning of some clauses vague on purpose, in order to secure the votes needed for adoption.

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You cannot rely only on the text and claim at the same time to be an originalist. Discerning original meaning forces you to go beyond the text into a problematic history that will not give you anything like certainty. In the end, there is no way to interpret the Constitution or its amendments without bringing your own judgment to bear.

Harry Kopp, Baltimore

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