Supports my sense that, when original meaning is ambiguous, Barrett will adopt neither a presumption of constitutionality, nor a presumption of liberty. The best understanding controls.
Supports my sense that Barrett's Kanter dissent took a disjunctive approach: gun regulations are constitutional if they are either historically rooted or satisfy the relevant level of scrutiny (strict, in that case).
This is a bit misleading. In the article, "overruling is exceptional" was just a descriptive claim that the Court rarely overrules its past decisions. It wasn't a prescriptive claim about when the weak presumption of stare decisis is overridden. Still interesting, though.
Interesting. My sense was that Barrett viewed Charming Betsy as a policy-based canon, and was skeptical that it protected constitutional values. This suggests the opposite (which would be good news).
The public's original understanding of the law is not the original public meaning of the text (which pm originalists typically unpack in terms of a hypothetical reasonable reader). I'm guessing this was a slip.
Important. If Barrett reads a text as setting a standard, not a rule, she'll exercise normative judgment. See her striking opinion in US v Terry: media.ca7.uscourts.gov/cgi-bin/rssExe…
Natural law or positivism, Judge Barrett? Pick. A. Side.
Every judge needs to see these places.
In case you were wondering:
Seems to support @mjschwartzman's read of Barrett's leanings on the religion clauses:
Shout out Youngstown:
Good to know:
Barrett and Breyer will get along famously
Huh. Now it's the public's actual understanding of the text's meaning.
Not much love for foreign law
Sorry, Privileges or Immunities Clause stans
Is that ... moral judgment? After 180 pages, it's rather refreshing.
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2. In 2010, Barrett strongly indicated that she rejects the Charming Betsy canon, that is, "the rule that where one
interpretation of a statute would compromise the international obligations of the United States, the court should adopt any other plausible interpretation."
3. Why? Because compliance with international law is a policy value, rather than a constitutional value. And policy questions are for the legislature (and presumably the executive), not for the judiciary.
1. Interestingly, Barrett probably agrees. In 2010, Barrett accepted that statutory textualism was not dictated by original meaning/understanding or historical practice.
2. At that time, Barrett argued that courts are "faithful agents" of the legislature, and textualism best preserves legislative compromises. Later, her view changed.
3. In 2017, Barrett argued that courts are faithful agents of the people, and that fairness to the people requires interpreting statutes according to their public meaning.
Yes, Barrett thinks most super-precedents will never come to the Court. Paper money is safe, etc.
But, Barrett shares "the [originalist] commitment to treat the constitutional text as controlling when the question is called." scholarship.law.upenn.edu/cgi/viewconten…
2. Yes, Barrett thinks overruling precedent requires “both reason giving on the merits and an explanation of why its view is so compelling as to warrant reversal.”
But, its view only needs to be compelling to fellow originalists ("methodological friends" in the literature).
3. Finally, I haven't seen Barrett endorse a particular standard for reversal, like "demonstrably erroneous." My sense from her later writings is that the most plausible reading controls. But this is an inference from her view that original meaning *is* the law.
1. The Kentucky AG says: "According to Kentucky law, the use of force by Mattingly and Cosgrove was justified to protect themselves. This justification bars us from pursuing criminal charges in Miss Breonna Taylor's death."
2. Under the Kentucky Penal Code (503.120), self-defense is unavailable as a justification in a prosecution for an offense involving wantonness or recklessness toward innocent persons.
3. Even if Mattingly and Cosgrove were justified in defending themselves against Walker, they may have wantonly or recklessly injured or risked injury to Taylor.
Self-defense does not preclude charging them accordingly.
Good piece. FWIW, many take the view that "principles of international law derived from ... the principles of humanity and from the dictates of public conscience" refers to general principles of law, rather than to customary international law. 1/
From the ILC SR's Second Report (which is absolutely fascinating and deserves much more attention than it's received): documents-dds-ny.un.org/doc/UNDOC/GEN/… 2/