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Originalism, Amy Coney Barrett’s approach to the Constitution, explained

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Judge Amy Coney Barrett’s Supreme Court confirmation hearings begin on Monday, and it’s a safe bet that we’ll hear one word over and over again over the next few days: “originalism.” Barrett is a self-proclaimed originalist, embracing a theory of the Constitution that is also shared by at least two other sitting justices: Justices Clarence Thomas and Neil Gorsuch.

Originalism, in Barrett’s words, is the belief that “constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.” Judges, originalists maintain, should be bound by the words of the Constitution, and the meaning of those words should be determined solely based on how they were understood when they were added to the Constitution.

One of the primary appeals of originalism is that it purports to constrain judges by requiring them to follow a written text even when they dislike the outcomes that text commands. “The main danger in judicial interpretation of the Constitution,” the late Justice Antonin Scalia said in a 1988 lecture explaining why he is an originalist, “is that the judges will mistake their own predilections for the law.”

At least in theory, originalism prevents judges from making this mistake by lashing them to the unchanging meaning of a written document. And, at least on the surface, its core insight that judges are bound by the Constitution’s words seems obvious: Of course judges should obey the text of the Constitution!

In reality, however, following the text of the Constitution is more complicated than it sounds.

The Hart Senate Office Building Room is set up for the confirmation hearing of Supreme Court justice nominee Amy Coney Barrett.
Caroline Brehman/CQ-Roll Call/Getty Images

For one thing, the Constitution is riddled with ambiguous language. What are the “privileges or immunities of citizens of the United States?” What makes a search or seizure “unreasonable?” If the government wants to deny “liberty,” how much “process” is “due?” What’s a “public use” of private property? What is the “general welfare of the United States?”

The meaning of much of the Constitution is vague and uncertain, and it was vague and uncertain when it was drafted. There are limits to what a judge can learn about constitutional meaning by combing through historical documents, or by reading 18th-century dictionaries.

Barrett herself seems to acknowledge this problem. “For an originalist,” Barrett wrote in 2017, “the meaning of the text is fixed so long as it is discoverable.”

Then there’s the problem of precedent. What should an originalist judge do if they are convinced that a longstanding practice — perhaps one that the Supreme Court itself declared constitutional in a prior opinion — violates the original understanding of our founding document?

To give one rather stark example, there was a robust debate among early Americans about whether it is constitutional for the federal government to fund “internal improvements” such as roads and canals. As president, James Madison even vetoed an 1817 bill funding such construction because he deemed it unconstitutional.

Madison’s views are now widely rejected. But suppose that a Supreme Court dominated by originalists concludes that Madison was correct. Does that mean that the entire federal highway system must be torn up?

Barrett has wrestled at length with the problem of precedent in her scholarship. “Adherence to originalism arguably requires, for example, the dismantling of the administrative state, the invalidation of paper money, and the reversal of Brown v. Board of Education,” Barrett acknowledges in a 2016 article co-authored with scholar John Copeland Nagle. She also states in that piece that there are some past decisions that “no serious person would propose to undo even if they are wrong,” so Barrett appears to recognize that it would be irresponsible for an originalist judge to overrule every precedent they believe was wrongly decided.

In a 2017 essay, Barrett suggests several tactics that an originalist Supreme Court could use to avoid triggering chaos. Because the Court’s “discretionary jurisdiction generally permits it to choose which questions it wants to answer,” for example, Barrett suggests that the Court can simply agree not to hear cases seeking to legalize public school segregation. Or seeking to declare the dollar unconstitutional.

Originalism, in Barrett’s words, is the belief that “constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.”
Olivier Douliery/AFP/Getty Images

But there is much at stake if an originalist Supreme Court is not willing to stay its hand in the ways Judge Barrett suggests. To give one more example, Justice Clarence Thomas has argued, on originalist grounds, that his Court should consider reinstating long-dead doctrines that were once used to declare federal child labor laws unconstitutional. Thomas, at the very least, seems unlikely to restrain himself simply because most Americans won’t like the outcome of a particular case.

As it turns out, originalism potentially gives judges — or, at least, Supreme Court justices — tremendous discretion to decide whether to upend foundational legal principles that few Americans would care to see unsettled.

That might be the entire point.

Three waves of originalism

Today, originalism is typically associated with political conservatives. Conservative scholars such as Robert Bork embraced originalism as a way to attack the liberal Warren Court’s decisions in the early 1970s. Justice Scalia, a conservative icon, spent several decades as originalism’s most vocal evangelist. On the current Court, the originalist banner is carried by conservative Justices Thomas and Gorsuch. And these two men are likely to be joined on the Supreme Court by the originalist conservative Amy Coney Barrett.

And yet, for much of the 20th century, the most vocal proponent of the kinds of textual and historical arguments favored by modern-day originalists was Justice Hugo Black, a liberal Franklin Roosevelt appointee. (There are subtle methodological differences among these different waves of originalism. Black, for example, tended to speak about the Constitution’s “original purpose,” while modern originalists speak more of its “original public meaning.”)

In the last century, there have been three great waves of originalism. The first, spearheaded by Black, sought to tear down prior efforts by conservative judges to thwart progressive legislation. The second, led by men like Scalia, was primarily a backlash against decisions like Roe v. Wade (1973) — decisions beloved by liberals and hated by conservatives.

The third wave, meanwhile, also has its roots in legal conservatism, but it is quite distinct from the restrained vision of judging advocated by Justice Scalia (or, at least, advocated by Scalia in the 1980s). Led by men like Thomas and Gorsuch, third-wave originalists are quite comfortable with judicial power. And they are eager to use it to drastically reshape the law.

Justice Hugo Black and first-wave originalism

Justice Black was one of the least likely champions of civil rights in American history.

A former US senator from Alabama, Black joined the Ku Klux Klan in 1923, and the Grand Dragon of the Alabama Klan played a major role in Black’s first campaign for the Senate. Black won his widest margins in that race in the parts of Alabama with the highest Klan membership.

Yet Black abandoned much of his racist past on the Supreme Court; he joined the Court’s decision in Brown. And Roosevelt, who was famously indifferent regarding questions of race, did not appoint Black in 1937 because he hoped that the former Alabama senator would advance a particular racial agenda. FDR’s goal was to make sure that the Supreme Court would not sabotage the New Deal.

Beginning in the late 19th century, the Supreme Court handed down a series of decisions gutting the government’s power to regulate the economy, and especially the workplace. In addition to its decision striking down federal child labor laws, the Court struck down minimum wage laws, stripped workers of their right to unionize, and struck down a law prohibiting bakery owners from overworking their employees.

This age is often referred to as the “Lochner era,” after the Supreme Court’s decision in Lochner v. New York (1905) — a decision that is now viewed as “discredited” even by conservative justices such as Thomas and Chief Justice John Roberts.

Many of these Lochner-era cases rested on a tendentious argument: The 14th Amendment mandates that no state may deny a person of “liberty” without “due process of law,” which establishes a “freedom of contract.” And this “freedom” supposedly prevents the government from regulating many exploitive labor contracts.

During Roosevelt’s first term, moreover, conservatives on the Supreme Court frequently blocked legislation Roosevelt had signed to lift the country out of the Great Depression.

Chief Justice Earl Warren, left, and Associate Justice Hugo Black arrive at Washington National Cathedral for a farewell tribute to the late Supreme Court Justice Robert H. Jackson, in 1954.
Bettmann Archive/Getty Images
Supreme Court Justice Hugo Black, far left, joins other justices to honor Justice Earl Warren, second from right, for the 10th anniversary of his tenure as chief Justice, in San Francisco in 1963.
Nat Farbman/The LIFE Images Collection/Getty Images

Justice Black was quite open about the fact that Roosevelt placed him on the Court to help restore the government’s power to regulate the economy. “That’s why I came on the Court,” Black said in 1967. “I was against using due process to force the views of judges on the country. I still am. I wouldn’t trust judges with that kind of power and the Founders did not trust them either.”

But Black was not a monolithic proponent of judicial restraint. To the contrary, he could be quite aggressive when he believed that the Constitution’s text and its history called for such aggression. Indeed, it’s likely that Hugo Black did more to expand the scope of the Bill of Rights than any judge in American history.

Before Black joined the Court, most of the Bill of Rights was understood to apply only to the federal government. States were free to violate most of these rights. One of Black’s primary projects on the Supreme Court — a project that was largely successful — was to make the entire Bill of Rights applicable to the states. And he justified this project on originalist grounds.

“I would follow what I believe was the original purpose of the Fourteenth Amendment,” Justice Black wrote in his dissenting opinion in Adamson v. California (1947). That “original purpose,” according to Black, was “to extend to all the people of the nation the complete protection of the Bill of Rights.”

For Black, preventing the Court from reading unwritten new rights into the Constitution, and ensuring that the rights explicitly laid out in the Bill of Rights were robustly enforced, were the same project. “To hold that this Court can determine what, if any, provisions of the Bill of Rights will be enforced, and if so to what degree, is to frustrate the great design of a written Constitution,” Black wrote in Adamson.

The text of the Constitution, and the “original purpose” of that text, must constrain judges. Removing that constraint risks Lochnerism. And Black would insist on such constraints even when confronted with laws he found odious.

In Griswold v. Connecticut (1965), for example, the Court struck down a state law preventing married couples from using contraception, holding that the Constitution protects a “right to privacy” for such couples that is not explicitly mentioned in the founding document’s text.

Black’s Griswold dissent showed no love for Connecticut’s anti-contraceptive law. “The law is every bit as offensive to me as it is to my Brethren of the majority,” Black wrote in that dissenting opinion. But the fact that he found the law offensive was not enough to override the Constitution’s text.

“The Court talks about a constitutional ‘right of privacy’ as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ of individuals,” Black chided his colleagues. “But there is not.”

Judge Robert Bork, Justice Antonin Scalia, and second-wave originalism

The second wave of originalists differed from Black in that they were largely political conservatives. Yet they shared many of Black’s critiques of decisions reading unenumerated rights into the Constitution. Indeed, second-wave originalists often presented themselves as champions of democracy, protecting the power of elected legislatures to make policy that unelected judges might find objectionable.

“A Court that makes rather than implements value choices” made by elected officials “cannot be squared with the presuppositions of a democratic society,” future judge and failed Supreme Court nominee Robert Bork wrote in an influential 1971 law review article.

For Bork, the liberal Warren Court — which moved the law significantly to the left during the 1950s and 1960s — had committed the same sin committed by conservatives in the Lochner era. It had substituted its own values for the will of the people.

The man who understands the issues and nevertheless insists upon the rightness of the Warren Court’s performance ought also, if he is candid, to admit that he is prepared to sacrifice democratic process to his own moral views. He claims for the Supreme Court an institutionalized role as perpetrator of limited coups d’etat.

As evidence for this dramatic claim, Bork cited the same case Justice Black railed against late in life: Griswold v. Connecticut.

The problem with Griswold, Bork wrote, is that the Constitution itself provides no guidance on when judges should apply a right to privacy. And, “where the Constitution does not embody the moral or ethical choice, the judge has no basis other than his own values upon which to set aside the community judgment embodied in the statute.”

Bork, like Black, was calling for constraints on judges — and he wanted to find those constraints in the Constitution’s text.

Judge Robert Bork testifying before the Senate Judiciary Committee in 1987.
Shepard Sherbell/Corbis/Getty Images

Judge Antonin Scalia testifying before the Senate Judiciary Committee in 1986.
Bettmann Archive/Getty Images

Scalia’s case for originalism was similar to Bork’s, though Scalia more often cited the Court’s abortion decision in Roe v. Wade (1973) as an exemplar of how judges should never behave. (Just as decisions like Lochner grounded a “freedom of contract” in the Constitution’s vaguely worded due-process clause, Roe grounded a right to privacy in that same vague clause, and then determined that this right to privacy extends to abortion.)

Like Bork, Scalia emphasized that the problem with decisions like Roe wasn’t that he disagreed with the policy judgment underlying them (although there’s little doubt that Scalia personally opposed abortion). Rather, Scalia presented himself as the defender of democracy. “Whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad,” Scalia said in a 2012 interview, “regardless of how you come out on that, my only point is the Constitution does not say anything about it.”

Rather, Scalia argued, the Constitution leaves questions about abortion “up to democratic choice.” The role of judges was to get out of the way of elected lawmakers.

As Keith Whittington, an influential scholar of originalism at Princeton University, wrote in 2004, the brand of originalism Scalia touted for most of his career “was a reactive theory motivated by substantive disagreement with the recent and then-current actions of the Warren and Burger Courts.” Second-wave originalism developed as “a way of explaining what the Court had done wrong, and what it had done wrong in this context was primarily to strike down government actions in the name of individual rights.”

Originalism or, at least, second-wave originalism, presented itself as a way to reduce the role of courts in public life and restore power to the people’s democratically elected representatives.

Justice Clarence Thomas, Justice Neil Gorsuch, and third-wave originalism

Men like Scalia and Bork came of age during an era when liberals dominated the judiciary, and they rose to power during a period of transition, when it was not yet clear that conservatives would gain total control of the Supreme Court.

So it makes sense that second-wave originalism would emphasize judicial restraint. Originalists writing in the 1970s and 1980s could not know if the Court would become more conservative in the coming decades, or if the Court would take another hard left turn. If they called for the judiciary to exercise too much power, second wave originalists might have been very upset about how that power was used by future justices.

Someone like Justice Gorsuch, by contrast, did not rise to power during an age of uncertainty. Gorsuch graduated from law school the same year that Justice Thomas replaced liberal Justice Thurgood Marshall — cementing a conservative majority on the Supreme Court. And Gorsuch has spent his entire professional career watching the Court move rightward.

While Scalia experienced the pain of watching the Court hand down decisions like Roe v. Wade, Gorsuch’s generation of conservative lawyers didn’t need to fear that the conservative Rehnquist and Roberts Courts would implement a broad liberal policy agenda from the bench. Conservatives of Gorsuch’s generation were most often upset by the Supreme Court when it showed judicial restraint — such as when the Court upheld most of Obamacare.

As Whittington writes, “if originalism in its modern form arose as a response to the perceived abuses of the Warren and Burger Courts, then the advent of the [conservative] Rehnquist Court made it largely irrelevant.” The third wave of originalism (or, what Whittington labels the “new originalism”) “is less likely to emphasize a primary commitment to judicial restraint.” Third-wave originalists are not defined by a “fear of judicial freedom,” and their rhetoric shows a “loosening of the connection between originalism and judicial deference.”

Third-wave originalists, in other words, are far more likely to call for democratically enacted laws to be struck down than their counterparts in the 1970s and 1980s.

Justices Neil Gorsuch and Clarence Thomas exchange glances during the state funeral of President George H.W. Bush on December 3, 2018.
Jonathan Ernst/AFP/Getty Images

The pioneering figure leading this third wave is Justice Clarence Thomas. Thomas is, in many ways, the anti-Hugo Black. While Black’s opinions wielded the Constitution’s text and its original history as tools to make way for the New Deal (and later the Great Society), Thomas wants to tear down the robust federal government that men like Black embraced.

Concurring in United States v. Lopez (1995), Justice Thomas argued, on originalist grounds, that the Constitution’s provision allowing Congress to regulate interstate commerce does not permit it to enact laws concerning “productive activities such as manufacturing and agriculture.” This is the exact same argument that the Court once used to strike down federal child labor laws. If taken seriously by the Supreme Court, Thomas’s view would endanger a wide range of New Deal and post-New Deal reforms, from a nationwide minimum wage to protections for unionized workers.

Similarly, in Department of Transportation v. Association of American Railroads (2015), Thomas argued that federal agencies such as the Department of Labor or the Environmental Protection Agency should be entirely stripped of their power to issue binding regulations — arguing on originalist grounds that these agencies may not “create generally applicable rules of private conduct.”

If this view was ever taken seriously by the Supreme Court, it would be virtually impossible for the United States to take effective steps to protect the environment. Key provisions of the Clean Air Act and the Clean Water Act would simply cease to exist.

Thomas’s version of originalism, in other words, sees much of the last century of American law as illegitimate.

The common theme underlying all three waves is that originalism is a reactionary doctrine. I mean this not in the pejorative sense of the word “reactionary,” but rather in the literal sense that originalism thrives in reaction to legal developments that particular originalists find objectionable. Originalists can be liberal (like Black), conservative (like Scalia), or something approaching nihilistic (like Thomas). But all three waves of originalism share a desire to wipe away something that came before.

Courts typically operate according to a principle known as “stare decisis” — Latin for “to stand by things decided.” It is typically not viewed as legitimate for a judge to simply declare “I will not follow this earlier decision because I disagree with it.” A judge who wants to overrule a prior precedent must offer a compelling justification for doing so.

But originalism proposes an alternative source of judicial legitimacy. Rather than being fenced in by their predecessors’ decisions, an originalist justice who overrules a longstanding precedent can claim the legitimacy that flows from the Constitution’s text and its early history.

So how much does originalism constrain judges, anyway?

The strongest argument for originalism is Scalia’s argument for it, that it will help prevent judges from mistaking “their own predilections for the law.”

Lawrence Solum is a University of Virginia law professor and a prominent originalist scholar. He told me over email that his personal politics are “progressive on most of the big questions.” But he nonetheless argued that liberals should hope that Republican presidents choose originalists like Judge Barrett over non-originalist conservatives.

“When we ask about the implications of appointing an originalist Justice,” Solum wrote to me, “it is important to think about the real-world alternative.” That alternative, at least so long as someone like Trump is picking judges, “is not a progressive living constitutionalist (in the short run), it is a conservative living constitutionalist” (the term “living constitution” was popular among 20th-century liberals who believed that the meaning of the Constitution must evolve over time).

Solum’s argument is that, if Trump does not appoint an originalist, he’s likely to appoint someone just as conservative — but without a judicial philosophy that seeks to constrain judicial discretion. Between those two unpleasant options, liberals should prefer a conservative justice who can be persuaded by text and history to reach decisions that do not align with their partisan preferences.

There’s something to this argument. In Bostock v. Clayton County (2020), Justice Gorsuch — an originalist who fetishizes the text of statutes and constitutions even more than Thomas — wrote a persuasive opinion holding that existing federal workplace discrimination law prohibits discrimination against LGBTQ workers. Prior to Bostock, the conservative Gorsuch had opposed LGBTQ rights in other contexts.

Judge Neil Gorsuch arrives for President Trump’s State of the Union address on February 5, 2019.
Bill Clark/CQ Roll Call/Getty Images
LGBTQ advocates gathered in front of the Supreme Court on October 8, 2019.
Erik McGregor/LightRocket/Getty Images

So at least some conservative originalists can, at least some of the time, be convinced to reach liberal outcomes when presented with an unusually strong textualist argument.

But even if we concede the point that an originalist conservative like Gorsuch is preferable to a predominantly partisan justice in the vein, of, say, Justice Samuel Alito, a question remains: just how much does originalism constrain justices who adhere to it?

In his 1999 book Constitutional Interpretation, Whittington, the Princeton professor, drew a distinction between constitutional “interpretation,” which he defined as the “process of discovering the meaning of the constitutional text,” and constitutional “construction,” which “cannot claim to merely discover a preexisting, if deeply hidden, meaning within the founding document.”

Many originalist scholars concede that at least some parts of the Constitution are trapped in the “construction zone,” meaning that there is no way to pin down a single interpretive meaning of these provisions using the originalist tool chest. So judges will have to rely on something else when asked to construe constitutional provisions with uncertain meanings.

There are many possible ways to decide cases that fall within the construction zone. As Whittington told me in an email, some scholars “argue that the courts ought to adopt default rules that effectively dictate how such matters ought to be resolved, such as ‘when in doubt, defer to the legislature.’” Other originalist scholars, Whittington adds, “argue that judges operating within the construction zone should be making use of the same kinds of jurisprudential tools that non-originalist judges would routinely endorse and use, like arguments based on precedent, constitutional structure, constitutional traditions, etc.”

But the mere fact that a debate exists among originalists about how judges should approach constitutional provisions with indeterminate meaning suggests that judges will have to exercise at least some individual discretion — they have to choose which method they will use to make sense of the Constitution when originalism fails to supply a clear answer.

And the difference between a judge who defers to elected lawmakers in all cases where the Constitution’s meaning is uncertain, and someone like Justice Thomas who appears eager to tear up much of the last century of American constitutional law, is profound.

There is good reason, moreover, to believe that much of the Constitution’s meaning cannot easily be pinned down. The framers themselves had bitter arguments about the document’s meaning, stretching at least as far back as Alexander Hamilton and Thomas Jefferson’s 1791 debate over the constitutionality of a national bank. Many central figures in the Constitution’s framing read it in ways that most modern scholars view as ridiculous — such as James Madison’s argument that the Constitution forbids the federal government from funding roads and canals.

If James Madison could reach a conclusion that is so wildly out of step with the generally accepted understanding of the Constitution, how can we trust someone like Gorsuch or Barrett to discover the document’s one true meaning? Why would we even think that such a meaning exists?

That the Framers themselves were uncertain about constitutional meaning, moreover, throws the debate over how originalists should approach stare decisis into sharp relief.

In his 1988 lecture explaining his originalist approach, Scalia praised Chief Justice William Howard Taft’s opinion in Myers v. United States (1926), which held that the president may remove executive branch officials without seeking permission from the Senate, as a model of originalist reasoning. Yet, as Scalia acknowledged, one of the most striking things about Myers is just how long it took the Court to reach its decision.

The Court first heard oral arguments in Myers in December of 1923. As Scalia writes, the case was then “set for reargument and heard again the next Term, almost a year-and-a-half later, on April 13th and 14th, 1925.” The Court’s decision in Myers “did not issue until more than a year-and-a-half after this second argument, on October 25, 1926” — nearly three years after the first argument.

Constitutional law is hard. It takes time — lots of time — to conduct rigorous originalist research. It often takes more time than the Supreme Court is willing to spend considering individual cases. The overwhelming majority of cases that the Supreme Court hears are decided in a matter of months, and the Court rarely devotes years to a single case.

That means that even originalist justices who operate in good faith are likely to make mistakes when trying to figure out the Constitution’s original meaning — or worse, they are likely to allow their decisions to be influenced by motivated reasoning.

Justices can’t avoid making value judgments

We are now 232 years from the day the Constitution was ratified. In the more than two centuries that it’s been our highest law, hundreds of thousands — if not millions — of lawyers, judges, and scholars have studied the Constitution’s text and tried to divine its meaning. And yet, after more than 200 years of debate, even originalist scholars and judges still argue about how to understand the Constitution.

Much of the document’s original meaning is still uncertain.

It is inevitable that judges — even originalist judges — will disagree about the Constitution’s original meaning. As Barrett acknowledges in her 2017 essay on originalism and stare decisis, originalist judges will inevitably encounter past precedents that they believe to be wrongly decided. And yet, simply plowing over those decisions without regard to consequences would ignore “the reliance interests of those who have structured their affairs in accordance with the Court’s existing cases.”

In other words, an originalist justice must make value judgments. If they become convinced that the Constitution, as originally understood, does not permit child labor laws — or that paper money is unconstitutional, or that Brown v. Board of Education was wrongly decided — then they must make a personal choice about whether the potentially quite radical consequences of tearing away decades or even centuries of American law are worth the benefits of bringing the Court’s decisions more in line with originalism.

As Solum told me in an email, “originalists need to be upfront about the problems of a transition to originalism.” If the Court “is going to go slowly in areas of law where immediate restoration of original meaning is infeasible or undesirable, it will be difficult to craft objective standards.”

Perhaps that explains why even many of the Supreme Court’s conservatives recognize that originalism has its limits.

Supreme Court nominee Judge Amy Coney Barrett is escorted into the Capitol with White House counsel Pat Cipollone and Vice President Mike Pence on September 29.
Susan Walsh/AFP/Getty Images
Demonstrators from the Center for Popular Democracy Action walk up the Supreme Court in costumes reminiscent of The Handmaid’s Tale in protest of Judge Amy Coney Barrett’s nomination on September 30.
Caroline Brehman/CQ-Roll Call/Getty Images

“I do think the Constitution means something and that that meaning does not change,” Justice Alito said in a 2014 interview. But that original meaning only goes so far. “Take the Fourth Amendment,” Alito offers as an example. “We have to decide whether something is a reasonable search or seizure,” but “that’s really all the text of the Constitution tells us.”

In many Fourth Amendment cases, Alito acknowledges, the only thing an originalist justice has to work with is a vaguely stated “principle.” To apply that principle to hard cases, “you have to use your judgment.” The original meaning of the Constitution provides few answers to judges hoping to figure out how the Fourth Amendment applies “to things like a GPS that nobody could have dreamed of” when the Constitution was ratified.

And yet, while a Supreme Court with Barrett on it will not have an originalist majority, it will have a very conservative majority. And that means originalism could play a major role in justifying decisions that shift the law dramatically to the right. Originalism provides an alternative source of legitimacy for justices who believe that past decisions were wrongly decided, and who need to offer a compelling justification for overruling those decisions.

Ultimately, the choice of whether to use originalist arguments to wreak havoc over centuries of existing law rests entirely with the justices themselves. And, with a 6-3 Republican Supreme Court, the majority is unlikely to show much restraint.


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Nearly 6,000 civilian casualties in Afghanistan so far this year

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From January to September, 5,939 civilians – 2,117 people killed and 3,822 wounded – were casualties of the fighting, the UN says.

Nearly 6,000 Afghan civilians were killed or wounded in the first nine months of the year as heavy fighting between government forces and Taliban fighters rages on despite efforts to find peace, the United Nations has said.

From January to September, there were 5,939 civilian casualties in the fighting – 2,117 people killed and 3,822 wounded, the UN Assistance Mission in Afghanistan (UNAMA) said in a quarterly report on Tuesday.

“High levels of violence continue with a devastating impact on civilians, with Afghanistan remaining among the deadliest places in the world to be a civilian,” the report said.

Civilian casualties were 30 percent lower than in the same period last year but UNAMA said violence has failed to slow since the beginning of talks between government negotiators and the Taliban that began in Qatar’s capital, Doha, last month.

An injured girl receives treatment at a hospital after an attack in Khost province [Anwarullah/Reuters]

The Taliban was responsible for 45 percent of civilian casualties while government troops caused 23 percent, it said. United States-led international forces were responsible for two percent.

Most of the remainder occurred in crossfire, or were caused by ISIL (ISIS) or “undetermined” anti-government or pro-government elements, according to the report.

Ground fighting caused the most casualties followed by suicide and roadside bomb attacks, targeted killings by the Taliban and air raids by Afghan troops, the UN mission said.

Fighting has sharply increased in several parts of the country in recent weeks as government negotiators and the Taliban have failed to make progress in the peace talks.

At least 24 people , mostly teens, were killed in a suicide bomb attack at an education centre in Kabul [Mohammad Ismail/Reuters]

The Taliban has been fighting the Afghan government since it was toppled from power in a US-led invasion in 2001.

Washington blamed the then-Taliban rulers for harbouring al-Qaeda leaders, including Osama bin Laden. Al-Qaeda was accused of plotting the 9/11 attacks.

Calls for urgent reduction of violence

Meanwhile, the US envoy for Afghanistan, Zalmay Khalilzad, said on Tuesday that the level of violence in the country was still too high and the Kabul government and Taliban fighters must work harder towards forging a ceasefire at the Doha talks.

Khalilzad made the comments before heading to the Qatari capital to hold meetings with the two sides.

“I return to the region disappointed that despite commitments to lower violence, it has not happened. The window to achieve a political settlement will not stay open forever,” he said in a tweet.

There needs to be “an agreement on a reduction of violence leading to a permanent and comprehensive ceasefire”, added Khalilzad.

A deal in February between the US and the Taliban paved the way for foreign forces to leave Afghanistan by May 2021 in exchange for counterterrorism guarantees from the Taliban, which agreed to sit with the Afghan government to negotiate a permanent ceasefire and a power-sharing formula.

But progress at the intra-Afghan talks has been slow since their start in mid-September and diplomats and officials have warned that rising violence back home is sapping trust.

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Classic toy tie-up: Etch A Sketch maker to acquire Rubik’s Cube

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Spin Master Corp., the company behind the Etch A Sketch and Paw Patrol brands, has agreed to acquire Rubik’s Brand Ltd. for about $50 million, tying together two of the world’s most iconic toy brands.

The merger comes at a boom time for classic toymakers, as parents turn to familiar products to entertain kids stuck in lockdown. Like sales of Uno, Monopoly and Barbie dolls, Rubik’s Cube purchases have spiked during the pandemic, according to the puzzle maker’s chief executive officer, Christoph Bettin. He expects sales to jump 15% to 20% in 2020, compared with a normal year, when people purchase between 5 million and 10 million cubes.

By acquiring Rubik’s, Toronto-based Spin Master can better compete with its larger rivals, Hasbro Inc. and Mattel Inc. All three companies have pivoted to become less reliant on actual product sales, diversifying into television shows, films and broader entertainment properties based on their toys. Spin Master CEO Anton Rabie said he wouldn’t rule out films or TV shows based on Rubik’s Cubes, but he was focused for now on creating more cube-solving competitions and crossmarketing it with the company’s other products, like the Perplexus.

“Whoever you are, it really has a broad appeal from a consumer standpoint,” Rabie said in an interview. “It’s actually going to become the crown jewel; it will be the most important part of our portfolio worldwide.”

Hungarian inventor Erno Rubik created the Rubik’s Cube in 1974, a solid block featuring squares with colored stickers that users could twist and turn without it falling apart. It gained popularity in the 1980s and has remained one of the best-selling toys of all time, spawning spinoff versions, international competitions of puzzle solvers, books and documentaries.

The toy has been particularly well-suited to pandemic conditions. During lockdowns, parents have sought to give kids puzzles that boost problem-solving skills useful in math and science careers. Normally, toys tied to major film franchises are among the most popular products headed into the holidays, but studios have delayed the release of major new movies because of coronavirus. So classic products are experiencing a mini-renaissance.

“The whole pandemic has really increased games and puzzles,” Rabie said. “But whether the pandemic existed or didn’t exist, we’d still buy Rubik’s. It’s had such steady sales for decades.”

Rubik’s CEO Bettin said it was the right time to sell the company, with the founding families behind it ready to move on. London-based Rubik’s Brand was formed out of a partnership between Erno Rubik and the late entrepreneur Tom Kremer, while private equity firm Bancroft Investment holds a minority stake in the company.

Early on, Bettin felt Spin Master was the right home for the puzzle toy, he said. Spin Master, which was started by a group of three friends in 1994, has expanded through the purchase of well-known brands, including Erector sets and Etch A Sketch. Rabie says he works to honor the “legacy” of those products, which Bettin cited as a key reason to sell the brand to Spin Master over larger companies that were interested.

“It was important for us to not be lost in the crowd, and to be sufficiently important and cared for,” Bettin said. “And there’s a balance between being with someone large enough to invest, and agile enough to ensure you are key part of their plans.”

Spin Master won’t own Rubik’s Cubes in time for the holiday season – the transaction is expected to close on Jan. 4. At that time, the company will move Rubik’s operations from a small office in London’s Notting Hill neighborhood to Spin Master’s new games operations center in Long Island.

Some of Rubik’s Brand’s 10 employees will be part of the transition, but they won’t stay permanently, Bettin said.

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To compete with China and Russia, America needs a new era of multilateralism

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With Election Day looming, American progressives yearn for an about-face from President Trump’s foreign policy — perhaps nowhere more so than when it comes to US multilateralism.

Multilateralism — working with other countries both through large international institutions and looser coalitions toward common goals — has been a pillar of American foreign policy since World War II.

From the creation of the United Nations and NATO to President George W. Bush’s Iraq War “coalition of the willing” and President Barack Obama’s negotiations alongside Russia and China on the Iran nuclear deal, America has rarely operated alone.

But Donald Trump changed all that.

The Trump administration’s approach truly has been America First equals America Alone. Trump pulled the US out of the Iran nuclear deal, the Paris climate agreement, the United Nations Human Rights Council, and the Trans-Pacific Partnership (TPP). He’s in the process of exiting the World Health Organization (WHO). He’s repeatedly questioned the value of NATO and mused about withdrawing from it.

Yet, amid calls to reprioritize “international cooperation, not competition,” progressive aspirations cannot paper over the real geopolitical frictions that will persist post-Trump. Just as conservative efforts to desert multilateral institutions are self-defeating, so too is the belief that international cooperation will blossom after November 3.

American progressives should seek to reengage in multilateral institutions, from the WHO to the UN. But they cannot forget that those institutions remain competitive zones where democracies must defend their values against authoritarian rivals.

Multilateral cooperation has never seemed more urgent — or more lacking

Covid-19 is only the latest instance in which the Trump administration is truculently set against the world, not just withdrawing from the WHO but also refusing to join the Covax initiative, a historic, global multilateral effort to ensure that all countries, rich and poor, will have access to a novel coronavirus vaccine if and when one or more become available.

Amid the pandemic-induced economic crisis, congressional Republicans seek to dismantle the World Trade Organization (WTO), all while a trade war batters American consumers and farmers. The last of the major US-Russia nuclear arms control agreements teeters on the verge of collapse, and both North Korea and Iran continue to improve and expand their nuclear and missile programs.

Given this bevy of undoubtedly self-injurious policies, it is understandable that some progressives are calling on a potential Biden administration to undertake a “fundamental re-envisioning of the United States’ role in the world,” emphasizing international cooperation.

But a desire for the United States to rejoin international institutions and agreements should not be synonymous with a belief that global cooperation will define a post-Trump world.

That belief naively and recklessly ignores a stark reality that has become all too apparent in recent years: Multilateral institutions have become one of the primary battlegrounds where the unfolding international clash of systems between democratic and authoritarian regimes is being waged.

Authoritarian countries like China and Russia know this fact well and are skilled at manipulating and exploiting international institutions to serve their own ends. The United States used to understand this fact, too, once upon a time, but it seems to have forgotten it lately.

It’s time for America to remember. It’s time for America to start using these institutions to punch back.

Hope that shared threats will outweigh geopolitical divides is not new

An American belief that international organizations could “help depoliticize controversial issues by treating these as neutral, technical challenges” underlaid the building of global institutions following World War II.

More recently, the early Obama administration viewed the “challenges of a new century” — countering violent extremism, nuclear nonproliferation, climate change, economic growth, and pandemic disease — as common ground around which international stakeholders would rally.

In both instances, however, cooperative visions foundered on the shoals of geopolitical differences.

Neither in 1949 nor in 2009 could shared “problems without passports” outweigh the equally immediate threat posed by liberal, democratic norms to authoritarian regimes. As the Brookings Institution’s Thomas Wright has written, a resurgence in geopolitical rivalry was “rooted in a clash of social models — a free world and a neo-authoritarian world — that directly affects how people live.”

That clash stemmed not only from traditional military frictions, but even more basically from the threat that open, democratic societies pose to the stability of authoritarian regimes.

Increasingly, those authoritarian regimes are striking back. Senator Elizabeth Warren has described a “belligerent and resurgent” Russia and a China that has now “weaponized its economy,” both of which seek to undermine open, democratic societies. Similarly, Sen. Bernie Sanders has outlined a future contested between “a growing worldwide movement toward authoritarianism, oligarchy, and kleptocracy” and “a movement toward strengthening democracy, egalitarianism, and economic, social, racial, and environmental justice.”

Consequently, while dangers like Covid-19 threaten everyone, differences between democratic and authoritarian regimes can yield contrasting responses. Take, for instance, something as basic as using technology like smartphones and apps to aid in contact tracing in the fight against Covid-19. As Vox’s Dylan Scott explains:

In the United States and across the world, smartphone applications are seen as a promising option to automate some of the work that health workers have traditionally been asked to do. Namely, they could silently track which people we’ve been in contact with, and if one of those people tests positive for Covid-19, our phone would send us a notification letting us know about our potential exposure.

But the data collection needed to do this quickly becomes entangled in concerns surrounding “digital authoritarianism,” where illiberal regimes employ such tools to “surveil, repress, and manipulate domestic and foreign populations” alike. The Chinese Communist Party’s use of this public health crisis to expand the scope of its surveillance and control shows that even when the world can agree on a common challenge, solutions may diverge based on a regime’s values.

Thus, even amid areas of international cooperation, a degree of vigilance is required to defend democratic interests. By no means is cooperation entirely foreclosed — which is why the Trump administration’s rejection of the Covax initiative is misguided. Nonetheless, democracies should not mistakenly believe that unalloyed cooperation in the face of every shared challenge advances their interests.

How to stand and compete from within …

While the United States cannot be starry-eyed about multilateral engagement, it also can’t afford to be cavalier as to its value — as Republican leaders increasingly are.

Not only does the United States confront a true peer competitor in China, making allies more necessary than ever, but the key domains of that competition — from trade and investment flows to advanced technologies and communications infrastructure — are already deeply enmeshed in multilateral institutions.

Authoritarian leaders understand this emerging dynamic.

Russia, long skilled in multilateral diplomacy, has amplified its efforts to shape international institutions, as President Vladimir Putin declares “the liberal idea” has “outlived its purpose.” Likewise, China, in seeking “reform of the global governance system,” looks to realign the world to better support the CCP’s illiberal rule at home — including its persistent surveillance of its citizens and the internment and forced “reeducation” of Uighur minorities.

Thus, rather than use cooperative mechanisms like Interpol for the intended purpose of catching criminals, Russia and China have focused on abusing the system to pursue political dissidents. Authoritarian leaders do not hesitate to twist international institutions to defend illiberal behavior beyond their own borders, such as the Russian head of the UN Counterterrorism Office striving to legitimate Chinese human rights abuses in Xinjiang.

As Beijing and Moscow lead the charge to redefine global norms, democracies must meet that challenge. From privacy rules for artificial intelligence to norms for combating transnational corruption, international standards set abroad will not remain overseas.

As the 2020 Hong Kong National Security law demonstrates, if authoritarian actions at the national level can reach into democracies around the world, so will global rules set by illiberal states. Consequently, the United States and like-minded partners must compete in international institutions to defend the values that underpin open societies.

That competitive posture does not necessitate withdrawal from international organizations, as some conservatives have preached. As Kori Schake of the American Enterprise Institute recently argued, “it is a ridiculous solipsism…to believe that if we stop participating in international cooperation and institutions that that cooperation stops happening.”

Instead of shifting the locus of competition to more advantageous ground, by withdrawing from these institutions, the United States merely cedes influence in the very arenas where the essential debates are occurring. Rather than isolating authoritarians to increase democratic states’ leverage, the United States is cutting itself off from the partners it needs.

So long as more universal forums, such as the UN International Telecommunications Agency, are where relevant standards are set, then active participation is called for. Abandonment only opens space for authoritarian powers to press their agendas.

This is perhaps nowhere clearer than the juxtaposition of the sidelining of Taiwan in the WHO against the March 2020 election for head of the obscure, but important, World Intellectual Property Organization (WIPO).

Despite Taiwan’s robust performance in managing Covid-19 — with only seven deaths thus far — Beijing has continued to block Taipei’s participation in WHO meetings, hampering sharing from that success. The Trump administration’s response? Only to throw up its hands and complain about China’s influence as it heads for the WHO’s door.

Conversely, in the March election to lead WIPO, the UN organization charged with protecting intellectual property, the United States chose to show up and take a stand. Recognizing the impact of Chinese-based intellectual property theft and cyberespionage, the Trump administration, in a rare moment of diplomatic engagement, rallied a near 2-1 vote in favor of the US-supported candidate against the Chinese alternative.

The message is clear: The United States leaning into a coordinated diplomatic push can make all the difference.

… and from without

Simultaneously, continuing to participate in universal institutions like the UN or WTO does not preclude pursuing new multilateral innovations to better defend democratic societies.

A decade ago, proposals for a “concert of democracies” or a “global NATO” stalled. Mistrust in the wake of George W. Bush’s “coalition of the willing” in Iraq coupled with a fear that being seen to push the expansion of Western-style democracy would alienate rising powers from India to Brazil, scuttling such efforts. Why needlessly stir the pot in a world where cooperation on shared transnational threats seemed critical and the march of liberal democracy appeared inevitable?

However, the current international landscape differs vastly from then. New institutions to enhance democratic societies’ defensive coordination may have seemed unnecessary a decade ago but should be seen in a different light today, when authoritarian regimes pose a real challenge to the liberal model.

Thus, today’s version — what Edward Fishman of the Atlantic Council and Siddharth Mohandas of the Center for a New American Security have called “councils of democracies” — would aim to protect democracy at home, rather than justify its forcible expansion abroad. In doing so, the United States and its democratic partners should neither pull up the drawbridge from universal bodies that include authoritarian actors nor remain beholden to those institutions, as they constrain democracies’ ability to better cooperate in their own defense.

Fortunately, US Cold War strategy offers lessons on managing that balance. Importing a Cold War strategy lock, stock, and barrel for current challenges would undoubtedly be mistaken. Nevertheless, that history reveals democracies are not forced to choose between more universal organizations like the UN and more values-based ones like NATO. Rather, working at times through narrower groups grounded in a shared belief in liberalism and democracy can enhance the position of open societies in those larger bodies.

For instance, instead of being caught between abandoning the WTO — a folly few other states would join in — and continuing to struggle along with the system’s real limitations and abuses, the United States could work outside the system to build leverage within it.

Here, as Jake Sullivan of the Carnegie Endowment for International Peace and Kurt Campbell of the Asia Group have outlined, a forum convening democratic states to build shared norms and standards on 21st-century economic issues — digital tax, data privacy rules, etc. — could be “layered over the WTO system.”

Such a combination would not only create a space to build the norms that democratic societies need for managing 21st-century governance challenges, but also maximize their leverage within the WTO to raise standards across a global economy.

At the same time, democracies should work in values-based coalitions to promote democratic security in increasingly strategic areas of international finance, advanced technologies like 5G and artificial intelligence, and battling transnational corruption. To protect democratic ideals, there will be times when it is necessary to exclude those who would seek to undermine them.

Today’s threats and circumstances may not require a global expansion of a formal alliance like NATO. Nonetheless, deepening ties between democratic societies will be essential on issues from sharing best practices on countering disinformation to maintaining information systems that appreciate values of transparency, accountability, and respect for individual privacy.

Here, the United Kingdom is an example of an early mover on what’s possible. Against rising concerns over cybersecurity and espionage from Chinese 5G leader Huawei, London has begun exploring a potential democracies-only grouping to better secure 5G communications technology, alongside other national security supply chains.

5G is only one illustration of a range of issues at the intersection of advanced technologies and the evolving digital economy where democracies must set the international rules if they are to maintain values such as privacy and free speech for their own citizens.

Thus, steps such as closer transatlantic coordination on investment security — reviewing foreign purchasers and investors in US or European companies — and export controls for new technologies emerge as essential in maintaining a lead in tomorrow’s technologies, in order to shape their use around liberal principles.

Fundamentally, as democracies increasingly compete with an economically powerful China and revanchist Russia, their best defense rests in recognizing that not only are democracies more competitive together, but that a gap in the armor in one is likely a gap for all.

A contest that cannot be wished away

In only four years, President Trump has left the United States embattled on nearly every front. An urge to trumpet international cooperation as a departure from his administration’s ceaseless antagonism is understandable.

However, in considering a world post-Trump, progressives must separate his disastrous policies from the structural reality of a growing clash between open and authoritarian societies — a contest that cannot be wished away.

Democracies must reengage multilaterally, but without losing sight that shared challenges do not necessarily beget shared solutions. Good-faith efforts at cooperation must be tempered by vigilance against authoritarian leaders who will not hesitate to use multilateral institutions to roll back and undermine liberal values in order to “make the world safe” for authoritarianism.

Given that reality, assertive measures are necessary to close ranks with other like-minded partners to defend democratic values in a more interconnected, but more contested, world. A post-Trump foreign policy may open the door for the pursuit of progressive goals; but they will have to be fought for abroad as much as at home.

Will Moreland is a foreign policy analyst focusing on US alliances and multilateralism. Previously, he served as an associate fellow with the Brookings Institution’s Project on International Order and Strategy. Find him on Twitter at @MorelandBW.


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