Whatever they might think about the President, Americans should do whatever they can to support Amy Coney Barrett's confirmation to the Supreme Court. Though she is eminently qualified for the Supreme Court, she has been explicitly attacked because she lives out her faith as a serious, thoughtful Christian. As the mother of seven children, two adopted from Haiti and one with Down Syndrome, she embodies pro-life and pro-family values. Secularists fear that she will be the Christian analogue to Justice Ginsburg — a role model for smart, serious, and capable women (and men). They do not want an intelligent, thoughtful, pro-life, pro-family, conservative woman to be in a position where she will get national attention. Ironically, they want her to stay at home. She puts the lie to their uninformed stereotypes of Christian women by showing that a person can raise a family — a large family — and be actively involved with her (or his) faith, a profession, and public service.
Judge Barrett has been through this before. She was viciously attacked when she was nominated to the Court of Appeals. During her confirmation hearings, California’s Senator Dianne Feinstein famously argued: “Dogma and law are two different things and I think whatever a religion is, it has its dogma. The law is totally different. . . . [T]he dogma lives loudly within you ….” As others have noted, this comment violates the spirit if not the letter of the “No religious test” provision of the US Constitution, Article VI. Reflecting disdain for both freedom of conscience and freedom of religion, this was a troubling attempt to exclude a person from public service solely based on her faith. Senator Feinstein sought to squeeze then-Professor Barrett into a moral schizophrenic mold — one set of values in private life and another in public life.
Others criticize Judge Barrett’s nomination because of her family’s participation in an interdenominational charismatic group, “People of Praise.” Those who caricature her relationship with that small Christian study group defame every Christian who is in Sunday School class, a prayer group, a Bible study group, or a Christian fellowship group that seeks to mentor and educate fellow believers. I speak from personal experience. The Sunday School Classes I have been involved in for 67 years and the couples’ home Bible Study groups for 38 years do not create religious automatons. They are occasions for reflection on the implications of Christian faith for one’s life. The treatment Judge Barrett has received is a threat to every seriously religious person in the US who wants to be active in public life.
Ironically, Judge Barrett’s legal interpretation theories — textualism and originalism — are the theories least likely to bring a judge’s personal beliefs into play in a decision. Under the textualist theory (dealing with statutes) and the originalist theory (dealing with the Constitution), the job of a judge is to interpret laws based on their meaning at the time they were adopted. Textualism is consistent with the Constitution’s separation of powers — legislators make the law, judges interpret the law, and the President enforces the law. The theory favored by the left — the living constitution theory — enables judges to legislate. Under it, judges may disregard constitutional language if they feel justified by their perception of the needs of society. The living constitution theory gives justices free rein to do whatever they want. “Living constitutionalism” is merely a high-sounding phrase for the end of the rule of law. Textualists, on the other hand, support the rule of law — a theory rooted in the Mosaic law, the first system of law in the ancient world to require the king to obey the law. (Deut. 17:18-20).
No human system of government is perfect. I suspect most of us would like to re-write aspects of the US Constitution, but the Constitution and its mix of democracy, federalism, and separation of powers is a worthy reflection of biblical insights into two aspects of human nature. American democracy is rooted in the Jewish and Christian notion that humans are created in the image of God — we are created equal, “endowed by [our] Creator with certain unalienable rights.” Humans should be able to determine wise and just laws under which they will live. In addition, however, the Jewish and Christian doctrine of human sinfulness grounds the need for law to restrain both citizens and government officials. As the primary drafter of the Constitution, James Madison, said in The Federalist Papers:
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government[,] you must first enable the government to control the governed; and in the next place oblige [the government] to control itself.
The Constitution wisely and carefully spreads power among fallen citizens, states, and branches of government. We need a Supreme Court that will respect its limits. We do not need a judicial oligarchy. Important issues of religious freedom, life, democracy, and the rule of law will be before the Supreme Court in the next few years. It is my hope and prayer that Amy Coney Barrett will be a member of that Court to help resolve them. “For such a time as this….”
Robert F. Cochran, Jr. is the Louis Brandeis Professor Emeritus at Pepperdine University School of Law. He has published over 60 articles and 10 books, including Christian Perspectives on Legal Thought (Yale University Press) and Law and the Bible (InterVarsity Press Academic).