June 10, 2023

Amy Coney Barrett — Forestalling a Misunderstanding

Writing in The Week, Ryan Cooper calls Judge Barrett “a hard-line social conservative who has suggested that paper money, West Virginia, the Fourteenth Amendment, and the Social Security Administration are all possibly unconstitutional.”

If that sounds weird, it’s a good sign that the matter bears some more scrutiny.

What Barrett wrote, in a co-authored law-review article, is that originalist arguments have been made to the effect that each of these things are unconstitutional. The authors do not say that these arguments are persuasive or even halfway decent. They use these examples to introduce the subject of the article, which is what originalist congressmen who disagree with well-settled judicial precedents should do. The examples were chosen to heighten the problem for the hypothetical congressmen precisely because the disappearance of any of these things is so unthinkable. There isn’t the faintest hint of a suggestion in the article that courts should strike any of them down.

If Barrett is nominated, misreadings of this passage are, I suspect, going to have to be batted down again and again.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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