Letter From Ralph Nader, Lou Fisher and Bruce Fein to Members of the Senate Judiciary Committee
Originalism is a judicial doctrine, most often associated with Justice Antonin Scalia, teaching that the interpretation of the Constitution should be governed exclusively by the specific meaning the drafters and ratifiers collectively assigned to the particular constitutional provision in dispute. One erroneous assumption, among others, is that there was a uniformity of understanding of each constitutional provision among the many participants in the drafting and ratifying process by the several states.
We, the undersigned, urge you to address Supreme Court nominee Amy Cony Barrett with the attached questions. They expose the alarming ramifications of Judge Barrett’s theory of originalism. If honestly applied, Judge Barrett’s theory of originalism would reverse volumes of constitutional jurisprudence. Among other things, her theory would upset such time-honored constitutional decisions as Brown v. Board of Education and Bolling v. Sharpe, the incorporation of most of the Bill of Rights as applicable to the States, and the one-person, one-vote principal in legislative districting. It would also require Judge Barrett to disown the Supreme Court’s decisions recognizing corporations, artificial entities with endless lives and limited liability, as persons within the meaning of the Fourteenth Amendment.
Moreover, originalism says nothing about stare decisis and a principled standard to determine whether a Supreme Court decision should be overruled, notwithstanding Article V empowering the people to reverse an allegedly wayward precedent by constitutional amendment. That has been done on four occasions. Thus, Judge Barrett should be questioned meticulously about her approach to stare decisis.
We believe the attached questions will help reveal whether Judge Barrett refrains from insisting on her originalism when the result would be unpalatable to her personal values or policies.
Amy Coney Barrett Constitutional Questions
1. What does “originalism” as understood by you teach as regards stare decisis and the circumstances justifying overruling a Supreme Court precedent, like Plessy v. Ferguson or Korematsu v. United States? Would you consult public opinion? How? What in the Constitution’s text gives a clue as to the weight a sitting Justice should give to stare decisis? Does a Justice just make up whatever weight should be given to precedent? Isn’t that tantamount to legislating from the bench? Supreme Court constitutional decisions contrary to popular will can be overruled with constitutional amendments, which has been done on four occasions: the Eleventh, Fourteenth, Sixteenth, and Twenty-Sixth amendments. Why should the Supreme Court overrule precedents when the amendment process can do the job?
2. How does your originalist theory address the issue of whether corporations are “persons” protected by the Fourteenth Amendment? The Supreme Court’s decision in the affirmative in Santa Clara v. Southern Pacific is sheer ipse dixit. What in the text of the Fourteenth Amendment suggests that persons include corporations which are artificial, non-human entities with perpetual existence and limited liability?
3. How does your originalist theory deal with Miranda v. Arizona? Do you think Miranda warnings are required by your originalist theory? Do you think Miranda is a good candidate for overruling? Dickerson v. United States (2000) affirmed Miranda as rooted in the Constitution. Was Dickerson wrongly decided according to your originalist theory?
4. How does your originalist theory deal with the Eleventh Amendment and state immunity from suit in federal courts? The text of the Amendment is clear: it applies only to suits against a State brought by a citizen of another State or foreign state. Yet the Supreme Court applied the Amendment to suits brought against a State by citizens of that same State in Hans v. Louisiana and its progeny? Should that line of cases be candidates for overruling? Why or why not? When the text is clear, as with the Eleventh Amendment, is there any canon of construction that legislative history should be consulted?
5. How does your originalist theory deal with the war power entrusted to Congress by the Declare War Clause? Every participant in the drafting, debating, and ratifying the Constitution understood the Clause to mean that only Congress could take the nation from a state of peace to war, leaving the President power to respond to actual aggression that had already broken the peace. Under your originalist theory, was the Korean War constitutional? The Vietnam War? The offensive use of the Armed Forces in Libya to overthrow Muammar Gaddafi and turn Libya into a wilderness? Under your originalist theory, can Congress delegate the war power to the President with a statute that provides: “The President may employ the United States military offensively, including conducting war, without limitation?”
6. How does your originalist theory address the preemptive power of the Commerce Clause, standing alone, to nullify state or municipal laws that discriminate against or impose an undue burden on interstate commerce? The prevailing standard as articulated by the Supreme Court in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) is as follows: “Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefit. [Citation omitted]. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.”
7. How does your originalist theory address the absolute immunity of the President from damages suits for flagrant unconstitutional acts proclaimed in Nixon v. Fitzgerald, 457 U.S. 731 (1982)? Where in the text of the Constitution is there a clue that the President is immune from suit for constitutional violations, including assassinations or torture?
8. How does your originalist theory address private damage actions against federal officials for violations of constitutional rights, including assassinations, torture, or kidnappings? Does your originalist theory endorse the Supreme Court’s reasoning in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) against judicial enforcement of constitutional rights and make them parchment barriers against constitutional wrongdoing unless Congress provides a green light? Does your originalist theory support overruling the Supreme Court’s decision in Bivens v. Six Unknown Agents, 403 U.S. 388 (1971)? Does it support overruling Davis v. Passman protecting congressional employees from gender discrimination?
9. How does your originalist theory address executive privilege or state secrets to conceal information from Congress? What in the Constitution’s text supports executive privilege or state secrets? What in the Constitution’s implies an executive privilege or state secrets? The Speech or Debate Clause expressly grants legal immunity for certain speech or actions of legislators, but there is no corresponding express immunity for certain executive speech or actions? If originalism leads to a dead end, to what do you resort to decide a constitutional case?
10. How does your originalist theory address Brown v. Board of Education? The same Congress that passed the Fourteenth Amendment also mandated segregated schooling in the District of Columbia. And how does your originalist theory address Bolling v. Sharp, which pivoted on the due process clause of the Fifth Amendment. The Congress that passed the Fifth Amendment also endorsed the constitutionality of slavery.
11. How does your originalist theory address the issue of whether corporations are “persons” protected by the Fourteenth Amendment? The Supreme Court’s decision in the affirmative in Santa Clara v. Southern Pacific is sheer ipse dixit. What in the text of the Fourteenth Amendment suggests that persons include corporations which are artificial, non-human entities with perpetual existence and limited liability?
12. How does your originalist theory address the Supreme Court’s incorporating virtually all of the Bill of Rights as applicable to the States under the due process clause of the Fourteenth Amendment? The Fifth Amendment also contains a due process clause yet was not thought sufficient to cover the multiple other individual rights protected by the Bill of Rights. The free exercise clause of the First Amendment is nowhere referenced in the 14th Amendment. According to your originalism theory, is the free exercise of religion protected by the 14th Amendment, or should Cantwell c. Connecticut be overruled? What about freedom of speech, freedom of the press, freedom of association, the establishment clause, the right to counsel, double jeopardy, the right to jury trial, or the right to confront accusers? Does your originalism theory dictate abandonment of the incorporation doctrine under the due process clause of the 14th Amendment?
13. How does your originalist theory address the exclusionary rule of the Fourth Amendment expounded in Mapp v. Ohio? What in the Amendment’s text suggests that the exclusion of evidence in a criminal case is a mandatory sanction for a violation?
14. How does your originalism theory address the Supreme Court’s one-person, one-vote decisions in both state and federal legislative elections declared in Baker v. Carr, Reynolds v. Sims, and Wesberry v. Sanders? Should the one-person, one-vote doctrine be overruled?
15. How does your originalism theory address the delegation of legislative power to the executive? Article I, section 1 of the Constitution vests “all” legislative power in the Congress. But since Schechter Poultry and Panama Refining, for more than 80 years the Supreme Court has sustained congressional surrenders of vast open-ended legislative power to the executive branch to promulgate legislative rules on a scale that dwarfs statutes enacted by Congress. Moreover, under the Chevron deference doctrine of your mentor Justice Antonin Scalia, deference is given to the executive in interpreting the magnitude of Congress’ delegation of its legislative power. Doesn’t your originalist theory require a prohibition of wholesale congressional delegations of legislative power to the executive, and a revival of more precedents like Schechter Poultry and Panama Refining?
16. How does your originalism theory address the state secrets doctrine as expounded in Reynolds v. United States, where the Court accepted without in camera review an untrue affidavit from the executive branch than discovery relating to the cause of the crash of a military aircraft would disclose state secrets relating to surveillance? Doesn’t such blind judicial deference to the executive deny due process to plaintiffs in such cases?
17. How does your originalism theory address the constitutionality of political patronage as expounded in Elrod v. Burns and its progeny? According to your originalist theory, does the Constitution permit making party affiliation a requirement for employment in a non-policymaking government position or for receiving a government contract?
18. Roe v. Wade was decided 47 years ago. Since the decision, there has been no serious effort in Congress or on application by two-thirds of the States under Article V to overrule Roe by constitutional amendment as has been done regarding four other Supreme Court precedents. Under your originalism theory, why should the Supreme Court overrule a decision which the political arms of government are unwilling to overrule?
19. In Michael H. v. Gerald D., Justice Scalia’s originalism theory dictated a rejection of unenumerated rights with an exception for those “deeply rooted in the nation’s history” or “implicit in the concept of ordered liberty” at the granular level of application. According to your theory or originalism as applied to unenumerated rights, do unmarried or married partners have a constitutional right of access to contraceptives as ordained in Griswold v. Connecticut and Eisenstadt v. Baird? Does your originalism theory support an unenumerated right to attend private schools or receive instruction in foreign languages as the Court upheld in Pierce v. Society of Sisters and Meyer v. Nebraska? Under your theory of originalism, what methodology do you use to determine whether an unenumerated right is deeply rooted in this Nation’s history or tradition or implicit in the concept of ordered liberty? What in the Constitution’s text gives you a clue as to the answer?
20. How does your originalist theory address the powers of Congress under the Commerce Clause and Wickard v. Filburn? Was the latter wrongly decided? Does the Commerce Clause empower Congress to regulate activity that has collectively impacts the price of a good or service nationwide under your theory of originalism? Explain.
21. The Slaughterhouse cases gave a very crabbed construction of the privileges and immunities clause of the Fourteenth amendment? Under your theory of originalism, was the case wrongly decided? If so, what should have been the interpretation of the clause?
22. The Supreme Court declared in United States v. Curtiss-Wright Export Corporation that the President was the government’s “sole organ” in fashioning in executing foreign policy. Is that statement consistent with your originalist theory of constitutional interpretation? In Federalist 69, Alexander Hamilton wrote: “The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.”
23. Under your theory of originalism, were the same-sex marriage decision of Obergefell v. Hodges and the homosexual sodomy decision of Lawrence v. Texas correctly decided? What factors would you consider in deciding whether to vote to overrule the twin precedents?
24. Under your theory of originalism, is the administrative state that combines legislative, executive, and judicial power in single executive branch agencies unconstitutional? James Madison wrote in Federalist 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
25. Under your theory of originalism, is the independence of the Board of Governors of the Federal Reserve Board from the President unconstitutional because it departs from a unitary executive branch? Explain.
26. Under your theory of originalism, does the Fourth Amendment extend beyond protecting persons, houses, papers and effects to protecting reasonable expectations of privacy, including phone conversations and internet communications in the digital age never anticipated by the Amendment’s framers? How does your originalist theory for interpreting the Fourth Amendment address expectations of privacy in the digital age generally?
Louis Fisher is a Constitutional Law Scholar who worked for four decades at the Library of Congress as Senior Specialist in Separation of Powers (Congressional Research Service, from 1970 to 2006) and Specialist in Constitutional Law (the Law Library, from 2006 to 2010).
Bruce Fein has served as special assistant to the assistant attorney general in the office of legal counsel at the Department of Justice, associate deputy attorney general, general counsel to the Federal Communications Commission, research director for the Joint Congressional Committee on Covert Arms Sales to Iran, and senior policy advisor to the Ron Paul 2012 presidential campaign. Mr. Fein is author of American Empire Before The Fall, and Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy. He has testified before Congress on constitutional issues on countless occasions.