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Excerpted from ‘What About the Rest of the Constitution,’ written by Jamelle Bouie in today’s New York Times:

“On Tuesday, Judge Amy Coney Barrett took a few minutes during her confirmation hearing to discuss her judicial philosophy, best known as originalism. It means, she explained, ‘that I interpret the Constitution as a law, I understand it to have the meaning that it had at the time people ratified it. That meaning doesn’t change over time and it is not up to me to update it or infuse my policy views into it.’”

This statement, while implying an external locus of control on the part of Ms. Cony Barret, also suggests she interprets law in a way similar to that of fundamentalist Christians’ in their unquestioning interpretation of Biblical text.

I will examine the question of how locus of control affects decision-making on another day. Today I’m going to address semantics as they pertain to Ms. Cony Barrett’s explanation concerning how she approaches the interpretation of Constitutional law.

The importance of the precision in terminology addressed by semantics assumes added significance when it comes to parsing out shades of meaning such as those involved in the judicial interpretation of legal texts—an essential part of the job of all conscientious jurists.  

Any endeavor to divine the original intent of the author of a particular document involves consideration of the following terms: interpret; construe; understand; believe. The meaning of these terms, respectively, according to the online version of Merriam-Webster, are:

“Interpret: to construe in the light of individual belief, judgment, or circumstance

Construe: to understand or explain the sense or intention of, usually in a particular way, or with respect to a given set of circumstances

Understand: to grasp the meaning of; to accept as a fact or truth; to believe or infer something to be the case

Believe: to consider to be true; to accept the word of; to hold as an opinion”

All of the above means of divining intent bear similarity in one important regard—they all are subjective in nature. Yet Ms. Cony Barrett appears to believe, if you take her at her word, that the originalist view of the Constitution is buttressed by and legitimized, with the imprimatur of objectivity.

The word ‘objective,’ as defined by Merriam-Webster, means “expressing or dealing with facts or conditions as perceived without distortion by personal feelings, prejudices, or interpretations.”

Merriam-Webster defines ‘perceive’ as: “to attain awareness or understanding of; to regard as being such”

But just how, exactly, does one “attain awareness” or ‘’understanding of,” by objective means, the intent of people long dead? What ‘facts’ exist capable of enlightening us on the original intent of the writers of the Constitution? What objective means are at our disposal to ascertain exactly what these people were thinking, what was going through their heads, when they crafted the document?

True, they left us much in the way of writings stating their thoughts about such matters, but the Founders thoughts themselves, like those of all people in all times, were imbued with the subjectivity in which all personal expressions are clad. And how, one might ask, is it possible to ponder any matter whatsoever with a mindset free of personal feelings, prejudices or interpretations? Our every thought is constantly informed by our experience, colored by our feelings, influenced by our prejudices and subject to our interpretations. Any attempt to convince ourselves otherwise is an attempt to assume divine stature, to imagine ourselves above the influence of such earthly matters, freed of our essentially human, and therefore fallible, natures. Such assumptions are utterly lacking in humility, stunning in their hubris, and, when they are undertaken by people in possession of the power to make decisions affecting the lives of others, they betray an alarming blindness in judgment. They amount to nothing more, in the end, than a pretense—a term defined by Merriam-Webster as “a claim made or implied, especially (italics theirs, not added) one not supported by fact.”

This quality of human nature, our ultimate liability to err, overlooked and ignored because of its inconvenient propensity to spoil the milk, is, to use an oft-employed analogy, the proverbial elephant in the room.  

The folly in interpreting Biblical texts without question is easy to see. We all know, for example, that the world wasn’t created in 40 days and 40 nights, as “documented” in the Old Testament. The greater folly inherent in interpreting the Constitution in a similar, literal manner may be less visible, but exists nonetheless. Originalist thought overlooks the “facts on the ground”—the ever-changing needs of real people in real life situations— and by so doing renders it incapable of adequately addressing their needs.  

By seeking to render ideological judgments that are abstract, sterile, and removed from reality, the Originalist approach to jurisprudence represents a real and present danger to democracy.

Tim Konrad

October 16, 2020