The confirmation of Amy Coney Barrett to the Supreme Court is a victory — for both the rule of law and the principle of separation of powers. Although much was made about Barrett's religiosity and conservatism in the lead-up to the Senate's final vote, the real issue prompted by Barrett's nomination is the nature and extent of judicial power.

The fact that we even care about the personal views of judicial nominees like Barrett is proof positive we have distorted and enlarged the function of the federal judiciary beyond anything the framers would have recognized. This aggrandizement is the logical consequence of contemporary jurists refusing to constrain their own authority to the text and original meaning of the law (especially the Constitution), thus usurping the legislative prerogative and robbing the people of the right to democratic self-governance.

Originalism and textualism have deep historical antecedents. As the late Antonin Scalia and Bryan Garner note in Reading Law: The Interpretation of Legal Texts, as early as 1427, the Scottish Parliament made it an offense for counsel to argue anything other than the original meaning of statutes by declaring "that naine interpreit the Kingis statutes wrangeouslie."

Fidelity to text and meaning was echoed by legal giants like Coke, Locke and Blackstone and firmly transplanted into American jurisprudence at the time of the founding — so much so that James Madison, an architect of the Constitution and author of the Bill of Rights, declared that the meaning of the Constitution, like any other law, should be "fixed" and "known."

The drift away from originalism and textualism as judicial orthodoxy is a relatively recent development. Beginning with the Supreme Court’s gradual recognition of the doctrine of so-called “substantive” due process in the early to mid 20th century, judges ignored the primacy-of-text principle and began to read into the 14th Amendment’s procedural guarantees judicially created substantive rights, "rights" allegedly “so rooted in the traditions and conscience of [the American] people as to be ranked as fundamental.” Predictably, even this modest restraint was eschewed, culminating in a litany of decisions fashioning newly discovered rights that are solely the product of the judicial imagination.

The restoration of courts to their constitutional function should be at the forefront of the discussion in the aftermath of Barrett's confirmation, as proposals to reform and pack the courts abound. If, as some in Congress would have us believe, courts should be empowered to make decisions in lieu of legislatures, then our entire democratic experiment is misguided and Marbury v. Madison — the seminal 1803 case establishing the power of judicial review — wrongly decided.

As Scalia noted, Marbury itself was predicated on “law-trained judges” doing what they do best; utilizing the text of the Constitution to assess the legality of legislation. If, however, judges are not bound by its text and can arbitrarily ascribe to the Constitution whatever meaning they like, then the courts are legislating, not judging. In that case, Congress should be the ultimate arbiter of constitutionality like Parliament is in the United Kingdom. For "[o]nly in the theater of the absurd,” wrote Scalia and Garner, “does an aristocratic, life-tenured, unelected council of elders set aside laws enacted by the people’s chosen representatives on the ground that the people do not want those laws.”

By abandoning originalism and textualism as constraints, we have empowered a judicial aristocracy to resolve disputes best settled in a legislative arena, not litigated in a judicial forum — forfeiting the very right to democratic self-determination that the framers sought to preserve. In the process, we have politicized and personalized judicial nominations and transformed a country built on democratic discourse into one ruled by judicial fiat. And that is sad indeed.

Alexander J. Cotoia is a resident of Las Cruces and a member of the Federalist Society. He holds a master’s degree in regulatory compliance from Regent University School of Law. The views expressed in this column are his own.

(1) comment

Phillip Livingston

The Federalist Society has developed a cafeteria approach to the issues it claims should rely on the content of original documents while engaged in a full effort to control the conversation about what is and what should not be within the proper role of the federal judiciary. In 1789, average citizens did not have the right to vote, nor did women, minorities, the illiterate and many others. The Federalist Society picks and chooses what is necessarily "original" and what is appropriately not "original". It is simply a different way of saying "my views are more important than yours" and to claim an unearned and unwarranted high ground. This opinion piece merely advances the Society's talking points.

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