A viral Instagram post with text over a photo of recently sworn in Supreme Court Justice Amy Coney Barrett reads: “I’m an originalist, that means I follow the law as it was when the country was founded. Yes I know Black people were considered to be ⅗ human then, so what?” The post has been liked over 28,000 times since it was posted on Tuesday.
Although Barrett does in fact describe herself as an originalist, the post is false.
Barrett described her perspective on originalism on the second day of her confirmation hearing in front of the Senate Judiciary Committee on October 13: “So in English, that means that I interpret the Constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it,” said Barrett. “So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.”
The term “originalism” was coined in the 1980s as a way to describe a judicial philosophy focused on understanding and interpreting the Constitution with its original meaning.
Randy Barnett, a law professor at Georgetown and the director of Georgetown Center for the Constitution, explains that originalists believe that the meaning of the Constitution should remain the same until it’s properly changed by amendments, and not by judges.
“The Constitution has been amended to eliminate the parts that are unjust and replaced by provisions that are not,” Barnett said. “So those provisions should be enforced according to their meaning.”
Not only did Barrett herself never say the text of the viral post, the premise of the post is also wrong.
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Photograph by Greg Nash/Getty Images.
I want to push back on this one just a little. I agree with everything you've said here. However, I think that the meme doesn't necessarily mean that ACB would still adhere to the 3/5 Compromise. It could be read to mean that we shouldn't be so enamored with the Constitution given that it was written by people who believed black people were worth 3/5 of white people. That's a more defensible position, even if I don't agree with it.
The correct answer to the title is yes. The error in the post your fact checking is the claim that "black people" were considered "3/5 human."
That's far more fundamental, since it reveals that those who shared the meme understand neither originalism nor the Constitution itself.
All free persons are counted wholly. "Indians not taxed" aren't counted at all, and "all other persons" are counted as three/fifths. That category has nothing to do with race. A free black person (most likely in the north) was counted 100%. Only the slave owners wanted them counted at all. The notion that the racist position is 3/5ths, rather than 0/5ths is historically illiterate.
Technically, the 3/5ths compromise is still in effect. If we were somehow to raise a group of parakeets to partial sentience and enslave them, they'd only be counted as 3/5ths of a person.