Gorsuch’s originalism problem
My greatest concern about Supreme Court nominee Neil Gorsuch is his self-proclaimed “originalist” method of constitutional interpretation. This puts him with Robert Bork, Antonin Scalia and Clarence Thomas, the other originalists nominated for the high court and the three most conservative individuals picked for the court in the last 90 years.
Originalism is the view that a constitutional provision means the same thing today as when it was adopted and that its meaning can be changed only through a constitutional amendment.
Gorsuch has said: “Judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.”
But the original understanding of the Constitution is unknowable, and even if it could be known, should not be binding today. Long ago, Chief Justice John Marshall reminded us that “we must never forget that it is a Constitution we are expounding,” a Constitution “meant to be adapted and endure for ages to come.”
If constitutional interpretation must follow the specific intentions of the framers, as Gorsuch wrote, the results often will be unacceptable if not absurd.
The world of today is so radically different from that of 1787, when the Constitution was drafted, or 1791, when the Bill of Rights was ratified, or 1868, when the 14th Amendment was adopted. For example, Article II refers to the President and vice president with the pronoun “he.” The framers undoubtedly intended that those holding these offices would be men. From an originalist philosophy, it would be unconstitutional to elect a woman as President or vice president until the document is amended.
The same Congress that ratified the 14th Amendment also voted to segregate the District of Columbia public schools. Under an originalist philosophy, Brown vs. Board of Education was wrongly decided and laws mandating segregation were constitutional.
And how is originalism supposed to guide us on interpreting the Second Amendment when many of the weapons Americans can wield today were unimaginable at the time of the Founding? How are we to apply an originalist interpretation of the Fourth Amendment’s ban on unlawful searches and seizures to sophisticated questions about electronic surveillance, location tracking and encryption?
The Constitution is and always has been regarded as a living document. Indeed, if a majority of the court were to adopt Gorsuch’s originalist philosophy, there would be a radical change in constitutional law.
No longer would the Bill of Rights apply to state and local governments. No longer would there be protection of rights not mentioned in the text of the Constitution, such as the rights to travel, freedom of association and privacy.
This would mean the end of constitutional protection for liberties such as the right to marry, the right to custody of one’s children, the right to keep the family together, the right of parents to control the upbringing of their children, the right to purchase and use contraceptives, the right to abortion, the right to refuse medical care and the right to engage in private, consensual homosexual activity. No longer would women or gays and lesbians be protected from discrimination under the equal protection clause.
Nor can originalism eliminate the need for justices to make value judgments that come down to their own ideology and life experiences. Cases involving constitutional rights and discrimination involve balancing of competing interests, which inevitably depends on the views of the justices.
In 1987, the Senate overwhelmingly rejected Bork for a seat on the Supreme Court entirely because of his originalist approach to constitutional law. He was deemed unacceptable because of his views that there was no constitutional protection for privacy, that only political speech is protected by the First Amendment, and that the equal protection clause does not apply to discrimination based on gender.
Gorsuch should be required to answer whether he shares these views of Bork and Justice Scalia. If Gorsuch had been on the court in 1973, how would he have voted in Roe vs. Wade? If Gorsuch had been on the court in 2015, how would he have voted in Obergefell vs. Hodges, which struck down state laws prohibiting same-sex marriage? Of course, he should not be required to say how he will vote in the future. But given his self-professed originalism, senators should insist that he describe how that would have led him to vote in these earlier cases.
Originalism is a terrible approach to constitutional interpretation and certainly is no more desirable today than it was in 1987 or, for that matter, 1787.