Gor­such the orig­i­nal­ist? Maybe, but what kind?

The Washington Post Sunday - - SUNDAY OPINION - BY DAVID M. DORSEN David M. Dorsen, a Washington lawyer, is au­thor of “The Un­ex­pected Scalia: A Con­ser­va­tive Jus­tice’s Lib­eral Opin­ions.”

Judge Neil Gor­such, the pres­i­dent’s nom­i­nee to the Supreme Court, calls him­self an orig­i­nal­ist. But what does that mean? Orig­i­nal­ism pro­claims that the Con­sti­tu­tion should be in­ter­preted ac­cord­ing to how it was un­der­stood at the time of its rat­i­fi­ca­tion in 1789 and sim­i­larly for amend­ments, start­ing in 1791. Pol­icy ar­gu­ments and the con­se­quences of dif­fer­ent in­ter­pre­ta­tions sim­ply do not mat­ter. For orig­i­nal­ists, the Con­sti­tu­tion is not alive; it is dead, static.

Jus­tice Clarence Thomas is an un­com­pro­mis­ing orig­i­nal­ist. Thus, he re­jects non-orig­i­nal­ist prece­dent, which is vir­tu­ally all there is. Thomas would not only change the law on abor­tion and de­clare the Af­ford­able Care Act un­con­sti­tu­tional, but he likely would also do the same with So­cial Se­cu­rity, Med­i­caid, the Pure Food and Drug Act, most en­vi­ron­men­tal laws and many oth­ers. His rea­son is that the com­merce clause was un­der­stood to be very lim­ited in 1789.

Be­fore the Se­nate Ju­di­ciary Com­mit­tee at his 1986 con­fir­ma­tion hear­ings, An­tonin Scalia pro­claimed him­self a faint-hearted orig­i­nal­ist be­cause he could not ac­cept flog­ging as pun­ish­ment for a crime. He later re­canted and opted for a con­sis­tent ap­proach to the Eighth Amend­ment’s “cruel and unusual pun­ish­ment” clause: If flog­ging was okay in 1791, it is okay to­day. But Scalia was faint-hearted in other, and more fun­da­men­tal, ways. He did not ap­ply orig­i­nal­ism to the en­tire Con­sti­tu­tion. Sig­nif­i­cantly, his free-speech ju­rispru­dence was not orig­i­nal­ist. For ex­am­ple, he re­jected con­tent-based dis­tinc­tions, such as crim­i­nal­iz­ing the burn­ing of an Amer­i­can flag, but only when it was done as a protest. He also re­spected most prece­dent, re­ject­ing stare de­ci­sis only for what he re­garded as egre­gious dis­tor­tions of the Con­sti­tu­tion, in­clud­ing de­ci­sions on abor­tion, the right to die, the death penalty and gay rights. Fi­nally, he chose orig­i­nal­ism be­cause it seemed to him to be ap­pro­pri­ate, and not be­cause the Con­sti­tu­tion’s framers en­dorsed it (they didn’t).

Be­cause a judge on a lower fed­eral court is con­strained by Supreme Court prece­dent, his ju­di­cial opin­ions are not a good mea­sure of his ju­di­cial phi­los­o­phy. It is when he is free to speak his mind, such as in a book or an ar­ti­cle, that his ju­rispru­dence re­veals it­self. Gor­such pro­claims him­self an orig­i­nal­ist. His ex­pres­sions are pri­mar­ily in a book, “The Fu­ture of As­sisted Sui­cide and Eu­thana­sia,” pub­lished in 2006, and a re­cent ar­ti­cle in the Case Western Re­serve Law Re­view on Scalia’s legacy based on a speech he gave last April. Th­ese two writ­ings give in­con­sis­tent sig­nals.

To op­pose as­sisted sui­cide and eu­thana­sia, Gor­such’s book re­lies mostly on moral and prag­matic ar­gu­ments, not on orig­i­nal­ism. The book de­votes just two pages to English and Amer­i­can com­mon law but dozens of pages to fair­ness and equal pro­tec­tion and to “the law of un­in­tended con­se­quences.” His con­cern is the (ir­rev­o­ca­ble) dan­ger of mis­take, abuse or co­er­cion, whether by zealots, fam­ily mem­bers, un­qual­i­fied or bi­ased physi­cians, or in­sur­ers, as well as lack of vi­able stan­dards.

Gor­such’s 2016 law-re­view ar­ti­cle re­flects un­com­pro­mis­ing orig­i­nal­ism. For him, the Con­sti­tu­tion makes an em­phatic dis­tinc­tion be­tween law­mak­ers and judges, with the lat­ter sim­ply en­forc­ing the law and not writ­ing it; judges should stick to en­forc­ing the law and not be cre­ative. To Gor­such, a fail­ure to ad­here to orig­i­nal­ism makes a judge a “prag­matic so­cial-wel­fare max­i­mizer” and leaves us “only with a rad­i­cally un­der­de­ter­mined choice to make.” But he ex­ag­ger­ates. Non-orig­i­nal­ist judges rely on prece­dent, his­tory, the lan­guage of the Con­sti­tu­tion and con­se­quences. Gor­such’s de­scrip­tion is a car­i­ca­ture of the ma­jor­ity of jus­tices.

Gor­such’s orig­i­nal­ism ig­nores the enor­mous prob­lem of as­cer­tain­ing what the law and prac­tice were around 1790. How would the found­ing gen­er­a­tion an­swer con­tem­po­rary ques­tions, such as ap­ply­ing the Fourth Amend­ment’s search-and-seizure clause to a de­vice that de­tects heat em­a­nat­ing from a build­ing in an in­ves­ti­ga­tion into un­law­ful cul­ti­va­tion of mar­i­juana?

Gor­such does not even men­tion the prob­lem of choos­ing be­tween the views of the two most in­flu­en­tial orig­i­nal­ists in his­tory. Scalia’s ver­sion of orig­i­nal­ism led him to write 135 lib­eral opin­ions. Thomas dis­agreed with Scalia on half his lib­eral opin­ions, in­clud­ing on the un­qual­i­fied right of a crim­i­nal de­fen­dant to con­front wit­nesses against him, a broad con­cept of what con­sti­tutes an il­le­gal search and seizure, and the re­quire­ment that a jury and not a judge make cru­cial find­ings in a crim­i­nal case. We need Gor­such to explain his orig­i­nal­ism and what that would mean for the Con­sti­tu­tion as we know it.

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