For many Americans, the nomination of Amy Coney Barret to serve on the United States Supreme Court seems as timely as the meteoric rise in ancient Persia of a Jewish girl named Esther, who saved her people from destruction. “Who knoweth,” a relative had written to her as the lives of so many hung in the balance, “whether thou art come to the kingdom for such a time as this?” (Esther 4:14)
The Miracle of the Constitution
Hanging in the balance today is the revered but increasingly misinterpreted document by which “we the people” govern ourselves—the Constitution, dubbed by British Prime Minister William Gladstone “the most wonderful work ever struck off at a given time by the brain and purpose of man.” But the men who actually produced it insisted that although they hadn’t created a perfect document—they even included a procedure for its own amendment—yet their efforts had been magnified by a power higher than themselves.
William Samuel Johnson spoke of the “signal intervention of divine providence,” while Charles Pinckney admitted to being “struck with amazement” at the same “super-intending hand of Providence, that so miraculously carried us through the war.” And James Madison, rightly called the Father of the Constitution, declared, “The real wonder is that so many difficulties should have been surmounted… with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution.” In fact, “it is impossible to consider the degree of concord which ultimately prevailed as less than a miracle.”
The same word was used by George Washington, who, after presiding over the Constitutional Convention, called the outcome “little short of a miracle.” Months later after taking office as our first president, he issued the nation’s first Thanksgiving proclamation in which he called upon his fellow citizens not only to thank Almighty God for allowing them “to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted,” but also to ask the Ruler of Nations “to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually, to render our national government a blessing to all the People, by constantly being a government of wise, just and constitutional laws, discreetly and faithfully executed and obeyed.”
A Dangerous Departure and the Warning of a Champion
Washington’s advice to faithfully adhere to the Constitution was as indispensable as he was, and the increasing failure of our Supreme Court to do so has wreaked havoc on our nation. One of the boldest critics of this departure was Justice Antonin Scalia, who insisted, “Whether life-tenured judges are free to revise statutes and constitutions adopted by the people and their representatives” is “a question utterly central to the existence of democratic government.” That Justice Scalia was widely denounced for being an “originalist” and a “textualist”—who believed that the Constitution says what it means and means what it says—reflects America’s dangerous departure from its founding principles.
But no amount of criticism could silence this fearless champion of the Constitution, as seen in a passage from his dissenting opinion in Obergefell: “It is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” Lamenting the Court’s “claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention,” Justice Scalia warned, “This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
How dangerous is this trend of unauthorized constitutional revision? Even liberal Professor Cass Sunstein has admitted that “in the Nazi period, German judges… did not rely on the ordinary or original meaning of legal texts. On the contrary, they thought that statutes should be construed in accordance with the spirit of the age, defined by reference to the Nazi regime.” Such sham justice and the horrors it inflicted stand as a sober warning as our Supreme Court continues to usurp power from “we the people” by twisting the original meaning of the Constitution.
Another Champion Arises
Justice Scalia is no longer here to call us back to that original meaning, but with the nomination of one of his former clerks to the Court on which he served, we stand to gain another champion of the Constitution. It would be hard to imagine a more qualified nominee than Amy Coney Barrett. Her long list of accomplishments includes graduating first in her class from Notre Dame Law School, whereupon she clerked for Judge Laurence Silberman on the D.C. Circuit Court of Appeals and then for Justice Scalia on the Supreme Court. She was a visiting associate professor at George Washington University Law School, a visiting professor at University of Virginia School of Law, and professor at Notre Dame Law School, where she was thrice named Distinguished Professor of the Year. By appointment of the Chief Justice of the Supreme Court, she served on the Advisory Committee for the Federal Rules of Appellate Procedure. She has published articles in Columbia Law Review, Virginia Law Review, and Texas Law Review.
Of her approach to the law, she referred to Justice Scalia and explained, “His judicial philosophy is mine, too. A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they may hold.” She has also stated, “The Constitution’s meaning is fixed until lawfully changed,” and “it is illegitimate for the Court to distort either the Constitution or a statute to achieve what it deems to be a preferable result.”
To her students graduating from Notre Dame Law School in 2006, she said, “If you can keep in mind that your fundamental purpose in life is not to be a lawyer, but to know, love, and serve God, you truly will be a different kind of lawyer.” That she was speaking from experience is evident from her personal devotion to her faith—as a practicing Catholic and member of People of Praise—and to her close-knit family: she and her husband, Jesse, also a lawyer and a law professor at Notre Dame, have seven children, one with Down syndrome and two adopted from Haiti.
Speaking to the 2016 graduates, she shared this life-changing perspective: “I am simultaneously proud to watch you graduate and sad to see you go. Your time at Notre Dame has truly flown by, and we will miss you. The words I want to share with you today are borrowed from Teddy Roosevelt: ‘Comparison is the thief of joy.’ I stumbled across this quote a few years ago, and it struck such a chord that I had it framed and displayed in our home. It reminds the members of our family to guard against comparing ourselves to others. That is my advice to you…. Class of 2016, choose happiness. Counterpunch the temptation to envy by choosing to be the first to rejoice in the good of others. This will not always come naturally; sometimes, it will require self-discipline. Refuse to let comparison steal your joy.”
A Notre Dame fellow law professor, Richard Garnet, described her as “careful, conscientious, civil, and charitable, and blessed with an unusual combination of decency, grace under pressure, kindness, rigor, and judgment.” Liberal legal scholar Noah Feldman, a Harvard law professor who served as a Supreme Court law clerk with her, has written that she “stood out” among the clerks. “I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed. Those are the basic criteria for being a good justice. Barrett meets and exceeds them.”
Those who believe in the Divine Providence that enabled the Founders to give us the Constitution might well believe also that Amy Coney Barrett has indeed come to the Supreme Court for such a time as this.