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Amy Coney Barrett speaks on originalism, constitutional interpretations

first_imgDoes an originalist interpretation of the Constitution require judges to ask what James Madison would do in a given situation?Judge Amy Coney Barrett (’97 J.D.) answered this question with a resounding “no” in a lecture hosted Wednesday night by the Notre Dame Club of St. Joseph Valley.“Many people think an originalist approach requires us to ask, ‘What would James Madison do?’ if we were confronted with some type of constitutional problem. … That’s not what originalism means,” she said.Barrett, who currently serves on the U.S. Court of Appeals for the Seventh Circuit, distinguished between two types of originalism: original intent originalism and original public meaning originalism.The former emerged during the 1980s under Justice Earl Warren’s and Justice Warren Burger’s Supreme Courts, Barrett said. It arose as a response to living constitutionalism, a way of interpreting the Constitution that defended controversial decisions such as Miranda vs. Arizona and Roe vs. Wade.“Everyone agreed at the time that decisions like this aren’t textually compelled,” Barrett said. “There’s nothing in the text of the Constitution itself. … At the time, living constitutionalism was a sophisticated justification. Courts ought to interpret with an eye towards current norms, push the country forward with an evolving idea of norms.”Meanwhile, original intent originalism suggested that the Constitution should be interpreted in exactly the same manner as its framers, Barrett said.“Original intent originalism was really an [exercise] of trying to think your way into the minds of the framers and say ‘How would James Madison approach this problem?’ or ‘How would Thomas Jefferson approach this problem?’” she said.However, Barrett said, there are several objections to this framework — there were several framers of the Constitution, and it is not possible to ever fully guess at their thoughts. Furthermore, Barrett said, one might object to this form of originalism on the grounds that the Constitution should not be bound by the “private intentions” of the framers.Original public meaning originalism counters some of these issues by interpreting the Constitution according to what its framers said, rather than thought, Barrett said.“The text of the Constitution controls, so the meaning of the words at the time they were ratified is the same as their meaning today,” she said.This form of originalism distinguishes between interpretation of the Constitution — looking at the meaning of the Constitution — and construction, or putting the Constitution into practice, Barrett said.“Making this distinction between interpretation and construction has had the effect of making originalism a pretty wide tent,” she said. “Now, in its most recent and modern iteration, originalism has attracted people of all different political stripes.”While some might criticize originalism by saying it allows “the dead hand of the past” to influence current interpretations, Barrett said striking down judicial decisions for this reason would be analogous to reversing laws once the people who enacted them died.“Nobody would say that for example, Miranda vs. Arizona is no longer good law simply because the justices who participated in that decision are dead,” she said.Additionally, Barrett said, judges retain the power to reverse decisions when needed.“What makes [judicial decisions] democratically legitimate is … we always have the power to amend the Constitution,” she said. “Judges have the power to reverse judicial decisions when they have the need to.”Barrett also addressed the criticism that originalism created an inflexible interpretation of the Constitution, saying originalism often offered guiding principles, rather than direct answers to individual judicial questions.“In some respects we should look at that [inflexibility] as a good thing. … It’s a floor, we don’t want to go below this,” she said. “We don’t want an entirely flexible Constitution because then we would have no constitutional protection at all.”Tags: Amy Coney Barrett, Notre Dame Club of St. Joseph Valley, originalism, The Constitution, U.S. constitutionlast_img read more

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Pentagon to resume mandatory anthrax shots for some

first_img “It is clear nobody likes getting shots if they don’t have to,” Winkenwerder said, as quoted in an Oct 17 Los Angeles Times story. “We have been sending a signal that it is not as important as we believe it is.” In January 2005, the FDA granted a Pentagon request for emergency authority to restart the vaccination program, but said the shots had to be voluntary. DoD has been giving the shots on a voluntary basis since April 2005. Dec 19, 2005 CIDRAP News story: “FDA reaffirms worth of DoD anthrax vaccine” Zaid said, according to the AP, that he would file a new lawsuit “as soon as needles start going into arms.” Oct 16 DoD news releasehttp://www.defenselink.mil/Releases/Release.aspx?ReleaseID=10083 Under the voluntary policy, about 50% of the affected service members have accepted anthrax vaccination, Winkenwerder reported in the DoD news release. He commented, “This rate of vaccination not only put the service members at risk, but also jeopardized unit effectiveness and degraded medical readiness.” In December 2005, the FDA completed a final investigation of the vaccine and reaffirmed its earlier finding that it was safe and effective. An Oct 16 Department of Defense (DoD) news release said that “military personnel, emergency-essential DoD civilians, and contractors” in those areas will be required to receive the vaccine. The program also will include units involved in “homeland bioterrorism defense,” the statement said. The mandatory vaccination program has been the subject of a long legal battle. Soldiers concerned about the vaccine’s side effects sued to stop the program several years ago, arguing that the Food and Drug Administration (FDA) had never specifically approved the vaccine for preventing inhalational anthrax. In December 2003 a federal judge in Washington, DC, ordered the program stopped. Winkenwerder said “several hundreds of thousands” of troops will receive the vaccine, according to an Oct 17 United Press International story. The story said that about 140,000 troops are stationed in Iraq, 30,000 in Korea, and tens of thousands in Kuwait, Bahrain, Qatar, and other Middle Eastern countries. An Oct 17 Reuters report put the number of troops in Afghanistan at 21,000. Another vaccine critic is the National Vaccine Information Center, a nonprofit advocacy group. Its president, Barbara Loe Fisher, told the AP, “The [DoD] has a moral duty to fully disclose anthrax vaccine risks, as well as benefits, to soldiers and allow them to make an informed, voluntary vaccination decision.”center_img “This is a vaccine that is unproven, unnecessary and has the potential to jeopardize the health of a service member where little benefit will be derived,” said Mark S. Zaid, an attorney who first challenged the vaccination program, as quoted by the Associated Press (AP) yesterday. “It’s always been a public relations program and nothing more,” he added. The announcement of the program’s resumption is generating renewed resistance. The FDA quickly responded with an affirmation that the vaccine was safe and effective for all forms of anthrax disease, and the judge then lifted his injunction. But in October 2004 he stopped the program again, ruling that the FDA had not followed proper procedures in issuing the new approval. “The vaccine has been thoroughly reviewed by several independent outside groups” and the FDA, Winkenwerder said in the Times story. “In all the studies we have performed, looking very, very thoroughly at the vaccine, there is no increase in mortality, there is no increase in morbidity, there is no increase in hospitalizations.” “The anthrax vaccine will protect our troops from another threat—a disease that will kill, caused by a bacteria that already has been used as a weapon in America, and that terrorists openly discuss,” said Dr. William Winkenwerder Jr., assistant secretary of defense for health affairs, in the DoD release. Critics of the program have said the vaccine—Anthrax Vaccine Adsorbed—can cause problems like infertility and autoimmune disorders, such as multiple sclerosis and lupus, according to the Los Angeles Times story. The article also said some soldiers died after being vaccinated, but the Pentagon said that no causal link to the vaccine was established. Oct 19, 2006 (CIDRAP News) – The Pentagon announced this week that it will resume, after a 2-year hiatus, mandatory anthrax vaccination for troops and other personnel stationed in the Middle East and South Korea. See also: The mandatory vaccination program should restart in 30 to 60 days, according to the DoD release.last_img read more