When Amy Coney Barrett was growing up in New Orleans, her grandmother relied not on a written recipe but on years of practice making shrimp rémoulade. Now the grandmother’s granddaughter is a Supreme Court justice who must implement the nation’s recipe for ordered liberty, the written Constitution, which “puts people on notice of their rights” and “government officials on notice of their obligations.”

“Unwritten constitutions, like unwritten recipes,” she writes in her new book, “Listening to the Law,” “can be hard to pin down.” So, however, can written ones. Unless pinned down as much as possible by adherence to the discoverable original public meanings of the words the Constitution’s framers used, the Constitution will not constitute. It will not give a durable structure to a polity, or due notice to the government and governed.

For Justice Barrett, as much pinning down as is possible is best done by originalism and textualism. These are principles that limit judges’ discretion, lest they encroach on the Republic’s institutions of representation. Judges need their discretion constrained by fidelity to the normal public meanings of the words used by those who wrote the texts of the Constitution and statutes.

Although Justice Barrett is preternaturally nice, she irritates some people. The reason she does makes her an exemplary justice. It is her fastidious acknowledgment that certainty and precision are often elusive when construing, as an originalist, the Constitution’s text (“due” process, “unreasonable” searches, “cruel and unusual” punishments, etc.) in modern contexts. Awareness of uncertainties justifies judicious restraint: The duty to construe texts does not empower judges to try to discover — or guess — the purposes or intentions of those who wrote the words.

To put the point less gently than Justice Barrett might: Some people with mind-closing jurisprudential orthodoxies are exasperated by the tentativeness inherent in originalism and textualism. Critics misperceive this as a lack of principled rigor. In judicial reasoning, however, the importance of living with the limited utility of principles is a principle.

Justice Barrett’s originalism is not so tightly tethered to the past that it cannot create rules implied by the Constitution’s text, history and structure. For example:

In 2023, the court blocked the Biden administration’s enormously consequential action (about $430 billion in student loan forgiveness) based on 2003 legislation authorizing, in an emergency, the executive to “modify” terms of student financial assistance. The court cited the “major questions doctrine”: An agency claiming an enormous power must demonstrate that Congress clearly granted it.

Critics on and off the court complained that this doctrine is “judge-made.” Textualism, Justice Barrett writes in her book, took the court to the conclusion that “modify” means “make modest adjustments,” which the forgiveness was not.

Much of constitutional law is a tapestry of judge-made doctrines made to apply original constitutional precepts in contemporary contexts. In this case, the major questions doctrine was applied originalism, conforming to the Constitution’s architecture, the separation of powers. Rather than augmenting its own power, the court was requiring Congress to clearly exercise its.

The Ninth Amendment says the Constitution’s enumeration of certain rights neither denies nor disparages others “retained by the people.” How, then, should we identify fundamental rights — those meriting robust judicial protection — without inciting courts to promiscuously proclaim such rights?

The court has devised a rule harmonious with the originalist frame of mind: A fundamental right is “deeply rooted” in American history and tradition and “implicit in the concept of ordered liberty.” That concept, and the measurement of something “deeply” rooted, requires originalism’s foundational self-restraint: One must always start, and often must end, with a deep dive into the nation’s memory.

Often, originalists resurface with differing conclusions. So, arguments continue. Get over it.

In his just-published book, “Born Equal: Remaking America’s Constitution, 1840-1920,” a Yale law professor, Akhil Reed Amar, emphasizes that America has an originalist political culture. This is because America, unique among nations, had a clear, emphatic origin. It was framed by two documents, the 1787 Constitution properly construed in the light cast by the 1776 Declaration of Independence.

In 1863, a politician with an originalist mentality summoned the nation to honor what its Founding Fathers originally said they had “brought forth” some “four score and seven years ago.” Although he loathed slavery, before the war, this originalist scrupulously respected the Constitution’s provisions that in several ways protected slavery.

Lincoln exemplified the painful patience sometimes demanded by what Justice Barrett calls “our constitutional culture.” Courts are secondary in maintaining this legacy of originalism. The public, inattentive and impatient, is primary.

The Washington Post