When Amy Coney Barrett began her Senate Confirmation hearing for a lifetime appointment on our nation’s highest Court, she opened with a statement that our Courts are not designed to solve every problem or right every wrong in public life and that courts should not try to do so. Like so many recent appointees to our nation’s Federal Courts and to Florida’s State Courts, she follows a legal philosophy promoted by the Federalist Society which they describe as “textualism” or “originalism”. Followers of strict textualism and originalism believe that outcomes and justice are not concerns of judges. Only the plain words of a statute or constitutional provision matter, not the spirit of the law. So long as the laws are properly passed, the courts should strictly enforce and construe them without regard to any injustices that may result. Additionally, “originalists” set for themselves the impossible aspiration that Judges should always view law using the mindset of the 18th century drafters of the Constitution.
No example of the dangers of textualism and originalism is stronger than Nazi Germany where some of the greatest injustices in human history were committed with legal authority. While “textualism” and “originalism” are often spoken of as if they are new ideas, they are merely a repackaging of “legal positivism”, the dominant legal philosophy in German Courts leading into and during the Nazi era. In legal positivism, the connection is severed between law and ethics, morality, and justice. Legal scholars studying the history of the German courts during the Nazi era have attributed legal positivism to the failure of the German courts to resist the many atrocities committed by the Nazi government. Gustav Radbruch, a German supporter of legal positivism prior to World War II, when later denouncing the theory stated: “the doctrine that law was whatever a statute said had rendered German justice helpless when confronted with cruelty and injustice.”
As Americans, we should heed the lessons of history and not let our courts become disconnected from justice. The goal in American law should never be to abandon justice. Instead, we should always seek to move towards justice. After all, if law is disconnected from its moral and ethical roots, then an evil legal system is as valid as any other. History shows us that a legal system disconnected from outcomes allows tyrants and dictators to commit atrocities that are given the power of law. We must do all we can to ensure that when Americans enter their courtrooms, they are entering a place where law and justice are not disconnected from each other.