‘Originalism’ debate bolsters why court needs more justices like Gorsuch

THROUGHOUT the weeks leading up to Judge Neil Gorsuch’s Supreme Court confirmation hearings, the left took aim at his “originalist” view of the law, the philosophy he candidly shares in common with the late Justice Antonin Scalia.

Liberal commentators have presented characteristically obtuse explanations of what “originalism” or “textualism” means. In the hearings, Democratic senators followed suit.

Sen. Dianne Feinstein, D-Calif., the ranking Democrat on the Judiciary Committee, grossly mischaracterized Scalia in asking a question presumably written for her by a rabid staffer: “Do you agree with Justice Scalia’s statements that originalism means that there is no protection for women or gays and lesbians under the equal-protection law because this was not the intent or the understanding of those who drafted the 14th Amendment in 1868?”

It would, in fact, be the opposite of originalism to interpret the law according to hidden racist or sexist ideas or intentions supposedly in the minds of its drafters. Gorsuch explained this to Feinstein in his reply.

“The point of originalism,” Gorsuch explained patiently to Feinstein, “is to strive to understand what the words on the page mean. Not import words that come from us, but apply what you, the people’s representative, the lawmakers, have done … I think that guarantee — equal protection of the laws guarantee in the 14th Amendment, that it took a civil war for this country to win — is maybe the most radical guarantee in all of the Constitution, and maybe in all of human history. It’s a fantastic thing, and that’s why it is chiseled in Vermont marble above the entrance to the Supreme Court of the United States.”

With this explanation, Gorsuch explained not just originalism, but also the very purpose and importance of written law.

When Draco first inscribed the laws of Athens on wooden tablets, he transformed the law from a mishmash of oral traditions into a fixed point in every citizen’s life. Once the law was in writing, it was accessible to everyone in an identical format, and there could be no doubt what it said.

That advancement and the rule of law itself are now threatened by novel “living-Constitution” theory, which is really just a high-sounding way of suggesting judges can make it up as they go along.

But if the concept of law, as law, is to mean anything, the meaning of each individual law has to stay the same. It cannot mean one thing on one occasion and another thing on another occasion if all the circumstances are the same.

As Gorsuch pointed out, nine decades of Jim Crow were made possible because politicians and judges deliberately avoided reading the 14th Amendment as it was written. Its radical textual promise of equality under the law, clearly understood by everyone when it was adopted in 1868, was displaced by an odious informal agreement to ignore the words on the page and uphold the racist cultural consensus that lasted for much of the 20th century.

This is why originalism is not only within the legal mainstream, but is indeed the only approach to the Constitution and existing written statutes that respects the democratic processes that brought them about.

That’s also why the Supreme Court needs Gorsuch and more justices like him, who will apply the law in its clear written meaning, the only form in which law is accessible to everyone, rather than creating new law by fiat in search of a desired outcome.