Newsletter: Should SCOTUS Focus On The Original Meaning Of The Constitution?

ARGUING YES

Randy Barnett
Professor at Georgetown University Law Center;
Faculty Director of the Georgetown Center for the Constitution

ARGUING NO

Thomas Colby
Professor at George Washington University Law School

Here is what we have in store this week:

• We debate the legal theory shaping the highest court’s decisions

• A closer look at the divide its usage brings

• Your Sunday reading list

From Chief Justice Judge Roberts and Amy Coney Barrett to Ketanji Brown Jackson, the latter of whom believes originalism requires liberal outcomes, these Supreme Court judges have declared themselves as “originalists” — or those who believe the Constitution should be interpreted based on how the public understood it at the time it was adopted.

So the question is: should the modern laws and policies governing our country be mainly interpreted based on what was written over two centuries ago? Those who argue “yes” claim while the circumstances today may be different, the Constitution is still the interpretive authority for determining current vexing legal and policy questions. Those who argue “no” say we shouldn’t be beholden to two-hundred-year-old law and that it limits the views of the Supreme Court judges.

What’s at stake? This theory was recently applied to abortion, gun rights and the environment. It could also be applied to other major cases, related to gerrymandering, LGBTQ rights, affirmative action, and more.

These upcoming cases could be affected:

• Students for Fair Admissions, Inc. v. President and Fellows of Harvard College

• 303 Creative v. Elenis

• Moore v. Harper

• United States v. Texas

Now, we debate the question: Should SCOTUS Focus on the Original Meaning of the Constitution? Arguing “YES” is Randy Barnett, who is the faculty director of the Georgetown Center for the Constitution. George Washington Law professor Thomas Colby is arguing “NO” to the question. Both debaters are well-versed in constitutional law and have either been involved in Supreme Court cases or clerked for one of its judges.

Listen to the full episode here, and as always, let us know what you think.

DEBATING THE DATA

The Supreme Court is leaning into originalist views – but does the public opinion go in the same direction?

POINT/COUNTERPOINT

Should SCOTUS Focus on the Original Meaning of the Constitution?

YES:

“Each and every person who claims power under the Constitution has to take an oath to uphold the Constitution. And if the meaning of the Constitution is just whatever the person who takes the oath says that it means, then that oath is meaningless. And I don’t think power should be turned over to people who take a meaningless oath.”

Randy Barnett

NO:

“These are abstract concepts. They could be read broadly, narrowly, or idiosyncratically in a thousand different ways. Why should we today be bound by the understandings of men who lived 100 or 200 years ago as to the true meaning of liberty and equality?”

Thomas Colby