ORIGINALISM AND THE SUPREME COURT: HOW DOES JUDGE GORSUCH MEASURE UP?

By Paul M. Lewis

As Judge Neil Gorsuch faces Senate confirmation hearings this week, we would do well to think what is meant by the concept of originalism. Gorsuch is a well-documented proponent of that legal theory, and it is one that can profoundly affect many of the cases that routinely appear before the Supreme Court.

Originalism is the belief that judges should accept the words of the Constitution, as they were understood at the time when it was written. It therefore touches upon the most basic questions that comes before a judge, namely, how to interpret a law in a given case, and if that law comports with the Constitution. Decisions using originalism as their founding argument usually align quite well with conservative principles. For example, gay marriage was not legal (it was never even considered) in the late 18th century, and no reference was ever made to it in the Constitution. Therefore, originalists say, that document cannot be used to make it legal today.

Justice Antonin Scalia, a well-known originalist, voted against the claimant in Obergefel v. Hodges, which legalized same-sex marriage. In his descent, Scalia even went on to call the ruling a “threat against American democracy,” although he adds that the ruling was “of no personal importance to me.” And while we can legitimately question the veracity of that claim, given the conservatism of his Catholic faith, as well as what Scalia has said elsewhere about gay people and their rights, what is at issue here is the stated legal reasoning behind his decision. He goes on to say that what is of overwhelming importance to him is this: “Today’s decree says that my Ruler, the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court,” adding that the courts have created liberties never intended in the Constitution.

In theory, originalists claim that they have no right to interpret laws, including, indeed especially, the Constitution itself, unless by interpretation we mean the parsing out of exactly what the writers of the Constitution meant at the time when they wrote it. This raises a number of obvious questions. First, how are we to know exactly what was in the minds of men (and there were, of course, no women framers), and white privileged elite men at that, who lived and thrived and thought as men did in the 18th century? It is difficult enough to get into the heads of people living today, in such a way as to discern exactly what is meant by what they have written. And yet we know, or can know, the recent history and the surrounding culture in a most immediate way. Which suggests yet another question, one that goes to this very issue of history and culture. The writers of the Constitution were men who lived high above others of their time in terms of wealth and power; some of them owned slaves and considered them to be property (e.g. Benjamin Franklin, James Madison, Thomas Jefferson, and George Washington, among others); they looked upon women as less than full citizens; they believed that only white male property owners should be able to vote and hold office; and they were overwhelmingly Protestant Christians. If these are the things the founding fathers embodied and believed in, do they really represent what we in today’s world ought to be attempting to understand and to emulate? Should this be the major contextual basis for interpreting the Constitution?

Originalists consider the Constitution to be a “dead document.” It is not a “living document” because it is not open to the interpretation of the present day. What it says is what it meant, nothing more, and any finagling with its meaning is, and ought to be, anathema. But nowhere does the Constitution itself make this claim. And while it may be argued that there was no need to say it, no need to make it explicit as this was simply understood, is that not an argument against itself? If the words of the document do not make it clear and unambiguous, then who are we to “interpret” the document to mean something it does not literally say?

The main dessenting argument against originalism in essence comes down to this: We cannot, and should not, attempt to literally apply a document, signed 228 years ago by a group consisting of all white men who believed in the very limited freedoms of that era, to the highly varied and extremely different world of the 21st century. Indeed, belief in originalism, as applied to the US Constitution, is very closely allied to a fundamentalist approach to the scripture of any religion you may care to name. Like originalists, religious fundamentalists hang on every word of the sacred text. They believe it says what it means in a literal way, and is not to be interpreted by humans so as to comply with current historical or cultural norms. The idea behind the notion is that God spoke to his people in this scripture, and because God does not make errors, nothing he said in the book can be wrong. According to this theory, our job is simple: to read, understand, apply verbatim, and obey. Those who do so, however, all too often encounter strange notions of what to eat, how to dress, and what we can and cannot say or do, according to rules that were put in place perhaps thousands of years ago, as if the world had not changed an iota in the intervening centuries.

If the Senate confirms Judge Gorsuch, just how strict an originalist he proves himself to be remains to be seen. The Heritage Foundation, a highly conservative political think tank, has written a lot about originalism by way of explaining and defending it. In “The Heritage Guide to the Constitution,” they discuss how it is possible to ascertain the original meaning of the founding document. Among other things, they suggest the obvious, such as discerning the “evident meaning of the words” according to the lexicon of the times; in addition, they recommend studying the surrounding debates of the time on the Constitution, looking at the words in the context of the political philosophy of the framers, reading contemporaneous interpreters, and examining the “evidence of long-standing traditions that demonstrates the people’s understanding of the words.”

But just as with religious fundamentalism, so with political originalism, one really cannot completely get away from interpretation. Too many things in sacred texts contradict one another, or are simply considered utterly outlandish in the modern world. The most obvious of these in the Bible is no doubt its support of slavery, but there are many others, as well. So then, is it all right to pick and choose what we think ought to be followed literally, leaving out the ones we choose not to acknowledge? Even the religious argument against abortion relies on interpretation. Abortion per se is nowhere condemned in the Bible. Instead, Christians rely on the “Thou Shalt Not Kill” commandment to support their position. Yet, it must be conceded that exactly when the life of a human being begins is a matter of opinion, of interpretation. The same can be said, covering the same issue, when it comes to originalism. The exact time when one can be identified as being alive as a human person is not clear. Is it at inception, or at birth? And yet, originalists claim that abortion is not supported by the Constitution. Why? Where does it say that life begins at the moment of conception? And if it does not say so, how can a law against it be considered anything other than an interpretation. Yet, originalists do not interpret. Or so they say.

Are originalists, and conservatives generally, the real upholders of the law and tradition, stalwarts who want to keep America on the straight and narrow, who fear a loss of self-identity, of “soul,” if we are not careful? Or are they merely proponents of small government, of upholding the rights of those who are already powerful and privileged, and of applying laws strictly, even harshly, because otherwise how are we to keep ourselves safe in a dangerous world? These notions of power and self-protection and aggrandizement of our country at the expense of all others have become binding principles among conservatives today, even more so with the advent of the Trump administration. And again, it’s worth remembering that originalist interpretations of the Constitution align very closely with these conservative beliefs.

It is therefore incumbent on senators, Democrats in particular, to question Judge Gorsuch very closely on his political philosophy. Not on the specifics of how he would rule in this or that hypothetical case. No judge can be expected to respond to the hypothetical, when details are unknown. But judges can well be held accountable for past decisions, and questioned closely on them. In legal terminology, this notion is referred to as stare decisis, a term that means to stand by things decided. Stare decisis can tell us a good deal about Judge Gorsuch, and it a valuable tool in helping us to understand just how he thinks judicially. Can words be understood in the context of the modern world? Are we constrained to live by notions espoused hundreds of years ago, in a different era with a very different cultural and historical context? Or can we live in the present, applying our knowledge, our intelligence, and our experience to the principles laid down by those who came before us?

This is what I would like to know about Judge Gorsuch. And depending on what his answers to these questions may be, I would like to see him confirmed or rejected. At this point, my guess is that, given the judge’s past rulings and his writings, we ought to hold out for a better and more open-minded new justice of the Supreme Court.

 

 

WHERE YOU LIVE IS WHERE YOU BREATHE

By Paul M. Lewis

There are so many things happening in the political world these days that it’s hard to decide which to highlight. That being so, why not go for the biggest, the most menacing, the one that has the greatest overarching effect on all of us—namely, climate change, the warming of the very globe we all call home?

Yet the topic of climate change, in and of itself, is too vast and complex for any one article. It needs to be broken down into component parts. There are innumerable ways of approaching the myriad of issues related to it. But one that is surely among the most important, and yet which gets far less attention than it should, is that of overpopulation. In 1944, the year I was born, the world had fewer than 2.2 billion people in it. Today there are nearly 7.5 billion, an increase of more than 5 billion in the space of 73 years. Predictably, we will also see that number rise to 8 billion by 2024, and to 9 billion in 2042. What are we to do with all these people? How to feed them? Where to house them? Where to find enough arable land to grow crops for them? How will they make a living for themselves and their families? And what will be the effect of vastly increasing numbers of humans on the environment?

As daunting as these figures and these questions may be, hiding from them is not an option. We must look at them head on and not flinch. Once recognized, we then have to decide what to do about it, how to change what we otherwise know is coming. And, although it may be tempting to go to what seems like the simplest and most direct solution, that is, for people to have fewer children, as true as this may be, that option has not proven to be a particularly feasible one, at least as far as governmental regulations are concerned.

The one exception is China, with its now defunct one child policy. The population increase there has leveled off markedly in the last several decades, since the inception of the policy. For example, there were 33 births per thousand women in 1970, but only 15 births per thousand in 1998. This is an enormous difference, but the decrease comes with its own set of problems. Boys, always more desired in traditional Chinese society, were wanted and kept, while girls were often aborted, or sometimes even abandoned at birth. As a result, there are unnaturally more males in the population today than there are females, a major demographic and societal problem. And the rapidly aging population of China now has far fewer younger citizens to help support their elders in retirement. Additionally, it’s obvious that no western-style democracy would ever be willing, or able, to put into place the kinds of prohibitive restrictions the Chinese government did.

The best control on population growth is, and always has been, education—and education for girls, in particular. Note, for example, that the number of births per woman in Japan is 1.3; that same number for Guinea-Bissau is 5.7 births per woman. According to the Earth Policy Institute, “One of the most effective ways to lower population growth and reduce poverty is to provide adequate education for both girls and boys. Countries in which more children are enrolled in school—even at the primary level—tend to have strikingly lower fertility rates.” Let’s hear it, then, for more education.

But we know that there exist a number of obstacles to the education of children. Many countries are simply too poor to offer adequate teaching facilities for a large majority of their children, and there are others where social, religious and cultural factors prevent girls in particular from receiving an education. All of which points to a substantial likelihood that world population will continue to rise, at least for the foreseeable future. It’s therefore incumbent on us now to do what actually is in our power to help counteract the most deleterious effects of overpopulation.

The Trump Administration has already demonstrated that it does not believe in global climate change, or at least that the warming of the globe has anything to do with human activity. This perhaps should not be all that surprising. According to the Pew Research Foundation, almost three-quarters of Americans don’t trust the consensus of 97% of world scientists, who assert otherwise on climate change.

When it comes to actual numbers, however, and to hard data related to worldwide temperature variances, this is not really a question of belief. To cite one recent example, of the thousands that could be given, this past February was the warmest February on record. If the world really is warming, regardless of whom or what we believe may be responsible, it’s imperative to try to do something to prepare and protect ourselves and our environment from its worst effects. Decreasing the amount of fossil fuels used is what is most frequently suggested. And that must be done. But here, again, we run into corporate, and now governmental, doubters. If you don’t believe in human-induced global warming, why should you do anything about it?

Where, then, does that leave us? Fortunately, we do not have to rely solely on government at the federal level to effect changes. These days, a majority of the work is being done at the state and local level. And while I’m of the opinion that we need more than that, sometimes in the moment we have to take what we can get. Additionally, it’s encouraging that many businesses, and the military, have weighted in on the need for action to address global warming.

One plan that has gotten recent press (see “Housing is key factor in climate goals” in the Los Angeles Times, March 6, 2017) puts the emphasis on greater collectivity within cities—in other words, population density—as a way of drastically reducing commuting and the consequent use of gasoline. The idea, obvious enough, though not necessarily easy to accomplish, is to create urban spaces where people can both live and work in their own neighborhood. This eliminates the need for long commutes by car, and it allows people to get to jobs and places to eat and shop and play that are either within walking or biking distance, or that can be readily reached via fast, clean, affordable and reliable public transportation.

What’s being suggested is not so different from the kind of city I grew up in the 1940’s and 50’s. My family did not have a car, and that fact never felt to me like a burden. My father walked to work every morning; my mother took the bus to the department store where she worked; and my brother and sister and I all either walked or took the bus to school. The local grocery—a literal corner store—was a block away, and we lived across the street from our parish church. Sometimes, it may be that what was good was mistakenly discarded in the pursuit of what we like to think of as progress.

This new, or not so new, concept of closely packed housing near places of work and shopping and worship may not be welcomed by all. We have grown accustomed to driving in our private cars, sometimes long distances, to work and elsewhere. The concept of the soccer mom has become so acceptable as to even go unnoticed. Meanwhile, she drives her children hither and yon to team practice, to sporting events, and even to parent-arranged “play dates.” What ever happened to kids playing with others in the neighborhood? Some of the most affordable and desirable housing has been put up in sprawling suburbs with few amenities within easy reach. It is not uncommon in places like Los Angeles for an individual to drive an hour, even an hour and a half, each way to and from work.

As much as we may wish for a house in the suburbs with three bedrooms and two baths, it may be that we have to face the fact that it is, in the long run, unsustainable. And if it is difficult to maintain now, with the population we currently have, what will happen in 2042, when there are 9 billion people on the planet? The idea of attempting to reduce some of the excesses of overpopulation through the encouragement of urban population density is of course not a panacea. Indeed, like most things, it falls far short of a complete solution, and it brings with it its own pluses and minuses. It is, though, one of the many factors about which humans will have to make choices in the coming years, if we are to hope that our children, and their children, will be able to live on a healthy planet.

The truth is that change is coming, whether we like it or not, and whether we acknowledge it or not. Surely, it is better to look directly at what will be, and to make the adjustments needed now, in order to help diminish some of the worst effects of these eventualities. What is needed is a willing coalition of ordinary citizens, of city and county government officials, of the private sector, of state leadership, and eventually (or so we can hope) support and encouragement at the federal—and the international—level, to make the kinds of changes that are needed.

This is a tall order, especially in today’s hyper-partisan atmosphere. But in the end, the consequences of doing nothing may be too terrible not to contemplate.