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.

 

 

ANTONIN SCALIA: A JURISPRUDENCE OF FUNDAMENTALISM AND DISCORD

By Paul M. Lewis

Much of the praise so recently heaped upon now deceased Supreme Court Justice Antonin Scalia has come as something of a surprise to me. Even President Obama eulogized him as having “given extraordinary service to our nation.” I get it that people do not want to speak ill of the dead. That, at least, is the polite take we have all been taught, as if the mere fact of a person’s mortality ought to make us somehow more forgiving of who that individual was in life. But sometimes the truth will out, regardless of conventional views on etiquette and protocol, because what a person did and said while alive, and how that individual treated others, should mean something.

Scalia’s fundamentalism, his so-called originalism in the reading of the Constitution, has to appear at the top of the list in terms of what I see as his faults. This is especially so because it has the potential of influencing others to follow the same rigid and overly literal attempt to understand a given text, in the same way as Christian fundamentalists read a passage from the Bible. In its essence, this is exactly what Scalia did with his reading of the Constitution, adding that it must be understood and interpreted exactly as its framers understood and interpreted it. We were, in other words, somehow supposed to ferret out their “intent.” The obvious fallacy of this position is that it’s hard enough for us to understand what even those close to us are thinking, let alone someone whom we do not actually know but who is still a contemporary. How, therefore, are we ever to fathom the thoughts and feelings, indeed the intent, of people who lived hundreds of years earlier, those who led vastly different lives in terms of the historical moment and culture of the day, their comprehension of what was important in human life, as well as what shaped that world’s values, needs, interests, technology, to say nothing of its ill treatment of whole classes of people? This would have included, by the way, all women, indigenous peoples, most foreigners (except those from Great Britain), anyone whose religion was not protestant, in addition to people of different races, ethnicities, and it goes without saying, sexual identities. How an otherwise intelligent individual, such as Scalia clearly was, could ever have come up with such a theory, and use it as a guiding principle of interpretation in case after case, remains a mystery to me.

But let us suppose that—against all odds—Justice Scalia had actually been able to somehow enter into the heads of Jefferson and Madison and the others. Let’s accept the fact, at least for argument’s sake, that he could have known, really known, exactly what these men were thinking, what their intent was. Even then, should we accept that originalism is a good way to interpret the Constitution?

We ought to begin by remembering, first of all, that these individuals were all white men. And not just any white men. They were of the upper class, wealthy landowners, to the manor born, as their British ancestors might have said. They were mostly protestants, they came from the same class, the same cultural background, went to the same colleges (Harvard, Princeton, William and Mary), knew many of the same people, and of course many of them owned slaves.

I am in no way attempting to denigrate these men, but they were men of their time. That doesn’t mean they also didn’t do marvelous things. To the contrary, they formed a new country that came to be the envy of all those who loved free thought, and they created a representative democracy that has lasted, more or less intact, for well over two hundred years. As such, they were in many ways remarkable men, albeit not perfect ones. And as grand a document as the Constitution they created was, and is, it failed to resolve one major division among the people who created it, and among all who have lived under it ever since, namely, the terrible tension between centralized federal power and states rights. In simplified form perhaps, but in essence, this is what led to the Civil War only some 80 years after its enactment, and it continues to haunt us to this day.

The point I am attempting to make is that reasonable people might well think that the Constitution has to be an evolving document, one that ought to be continually construed, interpreted, and understood according to the lights of those who are living under it at any given time. It’s worth noting that even its resonant opening phrase, “We the people,” at the time would have referred only to free, white men. And it is clear that not even an Antonin Scalia would hold to that in today’s world.

It is also true that Justice Scalia did not act alone, that he had the support of the other conservatives on the bench. But most Court observers recognize him as perhaps the leader of this faction; and certainly he often acted as its mouthpiece. Employing his strictly orthodox fundamentalism, his reactionary approach to interpreting the Constitution, Scalia did much harm to the living, breathing people of this country. Perhaps first and foremost among such decisions was the disgraceful overreach of Bush v. Gore, which landed us with an almost equally reactionary president for the next 8 years. In addition to that can be added the gutting of the Voting Rights Act, the overturn of McCain-Feingold and other campaign-finance rules, the infamous Citizens United, which miraculously turned corporations into people, and Scalia’s leadership in blocking much of Pres. Obama’s climate-change regulations. In the course of doing all this, he claimed that he attacked ideas, not people, but that is hardly how his scathing and vituperative dessents often came off. He seemed to reserve a special degree of toxic, hate-filled language for gay people, in fact. He spoke, for example, of the so-called gay agenda, which according to him was “promoted by homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” Opprobrium, for those who may not know—but a thing which Scalia, with his Catholic education, probably knew well—has its etymology in the Latin word opprobrium, unchanged in form, and meaning scandal, dishonor, or reproach. It refers to harsh criticism meant to bring about censure and public disgrace. In this same heinous rant, he went on to say: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a life style that they believe to be immoral and destructive.” Does this sound like attacking an idea, or is more of an all-out frontal assault on a whole class of people?

Antonin Scalia may have had a flair for the dramatic in his writing. And many have noted his geniality among colleagues, including his friendship with liberal Justice Ruth Bader Ginsburg. But an ability to turn a phrase, or crack a joke, or even to befriend someone whom he disagreed with politically, philosophically, and legally do not in my view make up for the tremendous harm this man has caused to so many. We can only hope that President Obama will nominate a fairer and more even-minded replacement to him on the Supreme Court, and that somehow the Republican-controlled Senate will give that individual an open and honest hearing. Granted that, given the intransigence and obstructionism in evidence in Congress these days, it may be only a fool’s hope; but even so, it’s worth a try.

If not, it is clear that we will be at the mercy of the next president, whoever he or she may be, in conjunction with, or opposition to, the Congress. And given the current depth of division and discord evidenced in the country, a rift reflected so glaringly, so alarmingly in the discordant and uncompromising jurisprudence of this Supreme Court justice, we can only hope against hope that we will be better served by a new appointee than ever we were by Antonin Scalia.