Dame Law School advertises itself as the place to go to become "A Different
Kind of Lawyer." In a 2006 commencement speech, then Associate Professor Amy
Coney Barrett wondered what that meant, and ultimately concluded that "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
After a dozen years in Catholic schools, I now belong to the most popular branch of Catholicism -- the lapsed. But I still recognize "to know, love and serve God" as what a Catholic high schooler would write to ace a religion exam, inarguably right since it's cribbed from the first paragraph of the Catechism. It is striking not for its dogmatism, but because it is so boringly pedestrian.
I start here because soon-to-be-Justice Barrett's common (and I don't mean that as a compliment) Catholicism rhymes, sort of, with her espoused legal textualism and originalism.All three privilege words over judgments, as if words were more important than the reality behind them. Sort of like saying "to know, love and serve God" without a clue what that means in the real world.
Gospel of John starts, "In the beginning was the Word." Except that in the
original Greek, the word for "word" -- "lexis" -- isn't
there. What John really says is that in the beginning was the
"logos." "Throughout most schools of Greek philosophy, this
term was used to designate a rational, intelligent and thus vivifying principle
of the universe." https://s3.amazonaws.com/snsocietymedia/wp-content/uploads/20170926172628/Logos-in-Greek-Culture.pdf
In much the same way, our own experiences necessarily nourish our understanding of the words we use. When I was a kid, a "telephone" was a heavy object wired into the wall, with a dial that you stuck your finger into and rotated. If you got the holes right you might end up talking to someone. My 10-year old self would never have included an iPhone within my original understanding of the word "telephone." Likewise, it's silly to pretend that Alexander Hamilton would have considered an AK-47 in the hands of a mad vigilante lexically equivalent to the bayoneted muskets of well-regulated militiamen. If that's what Judge Barrett means by originalism, the doctrine falls apart on many levels. Not the least of them, with respect to the Constitution at least, is that no one living today really knows what the Founders meant when they used their words, because none of us has any idea of the world they experienced. All we know are the meanings that our own experiences permit us to give their words.
"We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." For an originalist view of constitutional interpretation -- from a genuine original at that -- look no further.
Ong's Catholicism too has endured for ages, because it adapted to and drew from the cultures it encountered. As he wrote about yeast, "It not only grows in what it feeds on, but it also improves what it feeds . . . The church transplanted from any given culture to a new culture can live in a way that fits that particular new culture without losing its own identity, just as in doing its work of leavening, yeast does not sacrifice its own identity but remains growing yeast." To be Catholic is to remain open to whatever comes of diverse dialogue and social interaction. It was in the spirit of Ong's Catholicism -- and even of Marshall's Constitution -- that Pope Francis famously said of a gay priest, "Who am I to judge?" -- and now comes to support same-sex civil unions. https://www.nytimes.com/2020/10/21/world/europe/pope-francis-same-sex-civil-unions.html.
Now the drama's done and Amy Coney Barrett will join the Supreme Court. She's the woman. But we really needn't worry about her being "too Catholic." If anything, she's not yet Catholic enough.