There’s a lot that is going to be written about Amy Coney Barrett about her policies, her religion and the balance of the court. But what I’d like to focus on is something far more troubling found in her writings, and that is her view of so-called “Originalism”. Ms. Barrett, in a law article she wrote (you can read it here) pushes forth the “Originalist” theory that the Fourteenth Amendment of the U.S. Constitution is possibly illegitimate, and that 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”. The gist of the first five pages of Ms. Barrett’s article is this: It may be politically and culturally inexpedient for “Originalist” Justices and legislators to take these “honest originalist” positions, but they need not worry - they do not need to deal with overturning what they believe are invalid pieces of the Constitution or legislation until it is politically expedient to do so. Ms. Barrett writes (emphasis mine throughout this post):

An originalist member of Congress, by contrast, might have a harder time avoiding the conflict between original meaning and precedent. Congress has to decide whether to fund the Social Security Administration, to seat the elected representatives of the arguably unconstitutional state of West Virginia, and to rely on the Section Five power conferred by the possibly illegitimate Fourteenth Amendment. If an honest originalist must reject precedent in situations like these (assuming she decides that they are indeed unconstitutional), adherence to originalism is a recipe for folly, ending in electoral failure. If honest originalism does not require this result, the originalist must say why.

The paragraph above is saying that unlike Justices, who can deny certiorari to cases they do not wish to address, “originalist” legislators may have a tougher time rationalizing refraining from overturning what they feel are “illegitimate” frameworks in the Constitution and the law. She continues:

Because the kinds of procedural outs that permit originalism and deep-seated error to coexist in courts are not as readily apparent in the legislative context, the originalist legislator might have to face questions that an originalist justice can escape—such as the constitutionality of the administrative state or the legitimacy of the Fourteenth Amendment. Indeed, broad-brush arguments about the obligation imposed by the legislator’s oath of office, combined with the originalist emphasis on the preeminence of the text’s original meaning, strongly suggest that a member of Congress must do just that.

Ms. Barrett goes on to say that, similar to the Supreme Court, which can avoid questions of overturning things like the Fourteenth Amendment, Social Security and the state of West Virginia through procedural mechanics, Congress is not obligated to change precedents until politics makes it palatable to do so. She writes:

Part III contends that it misinterprets the duty of fidelity to the text to maintain that Congress (or any individual member) must strip every constitutional question down to the studs. That is not because Congress is obliged to treat precedents as the equivalent of the Constitution itself or because longstanding judicial departures from the Constitution function as virtual amendments. It is because the Constitution permits Congress, much like the Supreme Court, to employ techniques of avoidance that keep constitutional questions off its agenda. To be sure, Congress is free to reconsider super precedent any time it so chooses. The point is simply that a commitment to the primacy of the original meaning does not force Congress to reconsider super precedent when it has no interest in doing so. If the Court is likely to revisit super precedent only in response to litigants, Congress is likely to do so only in response to constituents—which is to say that as a practical matter, the People decide whether and when Congress should initiate correction of a deep-seated constitutional error. … Politics, not legal duty, determines whether Congress reconsiders the soundness of super-precedent.

It is worth noting that Ms. Barrett cites as a reference for the possibility of the Fourteenth Amendment as illegitimate a piece of writing from a person named Thomas B. Colby, entitled Originalism and the Ratification of the Fourteenth Amendment. You can find that document here, which contains this gem:

The Fourteenth Amendment was a purely partisan measure, drafted and enacted entirely by Republicans in a rump Reconstruction Congress in which the Southern states were denied representation; it would never have made it through Congress had all of the elected Senators and Representatives been permitted to vote. And it was ratified not by the collective assent of the American people, but rather at gunpoint. The Southern states had been placed under military rule, and were forced to ratify the Amendment—which they despised—as a condition of ending military occupation and rejoining the Union. The Amendment can therefore claim no warrant to democratic legitimacy through original popular sovereignty. It was added to the Constitution despite its open failure to obtain the support of the necessary supermajority of the American people. This Article explores the fundamental challenge that this history poses to originalism.

Just a history reminder – in 1860 the South seceded from the Union over slavery and declared themselves in open rebellion to the United States of America and created a new entity called the Confederate States of America. The Confederacy subsequently lost the war. As a condition of re-admittance to the United States of America, these states had to ratify the Fourteenth Amendment (as well as the Thirteenth Amendment outlawing slavery, and the Fifteenth Amendment which provided that the right to vote would not be denied on the basis of race, color, or previous condition of servitude). So yes, you lose the war over slavery, you then have to take the Amendments as a consequence.

Finally, as if this were not troubling enough, the Thirteenth and Fifteenth Amendments were ratified in the same way as the Fourteenth. Do Ms. Barrett and her cohorts believe these Amendments are legitimate? These are highly troubling writings from a person who is being considered for a lifetime appointment to the United States Supreme Court. Our Senators need to know this and we should demand they ask about this very issue.