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.

 

 

NO LAW RESPECTING THE ESTABLISHMENT OF RELIGION

By Paul

When the framers of the Constitution added the Bill of Rights, they began first of all by talking about freedom of religion. As much as this was, and still is, a shining moment in the history of humankind, it should also be acknowledged that there have been many concerns over the years related to the interpretation of these rights. To quote it directly, here is what the so-called “establishment clause” actually says: “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.”

In fact, these two short statements often seem to be in a kind of opposition to each other, and have almost from the beginning been the subject of discussion, argumentation, contention, division, and a myriad of claims related to the right way and the wrong way of living and behaving. What does it mean for the government to establish a religion? In one sense, this is clear. It cannot require all citizens to be members of and adhere to any one religious organization. This was added in to the Bill of Rights as an obvious reaction to laws that the framers of the Constitution, or their recent ancestors, had lived under, which forced all Englishmen of the time to belong to the Church of England. The colonies were founded, for the most part anyway, by people who had fled England specifically in order to be able to practice religions other than the established one. To be sure, these other religions were mainly Protestant Christian in nature, Presbyterian, Methodist, and of course Puritanism. The likelihood is very small that it ever occurred to the founders that this amendment to the Constitution might eventually also apply to Muslims, Jews, Buddhists, Hindus, Sikhs, Taoists, and even to Catholics, to say nothing of Wiccans or, more obliquely maybe, to those who believed in no God and no religion at all. And yet, the modern interpretation of the 1st Amendment does apply to all of the above.

Or does it? The basic question always seems to be, where do you fairly and impartially strike a balance when it comes to restricting government from setting up an official religion? And where is the line between the free ability of the people, perhaps even a majority of people, who wish to see aspects of their religion infused into the public life of the polis, and those opposed to these religious views and values being part of the law of the land?

The Supreme Court has grappled over and over with this tug of war, sometimes coming down on one side, sometimes on the other. The latest push-pull came just a few days ago, when a majority five members of the court voted to allow public prayers – prayers that were, in fact, predominately Christian in nature – to be said before a town meeting. Two citizens, a Jew and an atheist, had brought suit against the town council of Greece, New York, accusing them of repeatedly allowing prayers to open their meeting. Many of these prayers directly referenced Christianity, speaking of Jesus, his resurrection, and of other dogmas clearly associated with Christianity.

At issue is the comfort of non-Christian citizens, who may have business before their town council. Does a Jewish citizen of the town of Greece, for example, or an atheist, or a Buddhist (if there are any) feel all right about sitting through a prayer, any prayer, but especially one that ends with the phrase “in Jesus’ name,” all the while awaiting to conduct business before a government council?

In fact, let us not forget that the 1st Amendment of the Constitution does not stop with the declaration related to religious freedom. It goes on to list several other rights, as well. It may even be worthwhile to quote the entire amendment here:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peacefully to assemble, and to petition Government for a redress of grievances.”

In other words, the 1st Amendment goes on to also speak of other freedoms essential to the health of a democracy, namely, that of speech, of the press, of assembly, and of petitioning the government when things go wrong. Does a prayer, and specifically a Christian prayer, at the beginning of a town council meeting abridge any of these other freedoms? Arguably, it may well, particularly in regard to the last one listed, namely, the right of the people to petition the government (i.e., the town council, in this case) for a redress of grievances. And is this, along with all the other rights, not also a co-equal partner with freedom of religion, as delineated in the 1st Amendment?

According to Justice Kennedy, who wrote for the majority, the prayers were “merely ceremonial, and meant to signal the solemnity of the occasion.” Indeed, even the Obama Administration came down on the side of “protecting freedom of religion” in this case. And while it is true that most governmental bodies in this country do allow some sort of prayer before opening for business, more commonly these prayers are at very least entirely non-sectarian in nature, addressing a kind of generic “God,” without the addition of a specific name, and certainly not referencing “the saving sacrifice of Jesus Christ on the cross,” as one such prayer before the Greece, N. Y. town council meeting did.

For my money, I think that Thomas Jefferson was right when he said that there ought to be a wall of separation between church and state. And if solemnity before a public meeting is required, fine. Let us open with a moment of silence, during which time each person can address their own vision of God in their own heart, or not at all, if that is their individual wish. What, in fact, could be more solemn, less sectarian, less intrusive, and at the same time more “religious,” than silence?

Kennedy did go on to say that such prayers ought not to denigrate other religions, or to proselytize, or “to threaten damnation.” Really? Is this the bar to which we should be held: let us not “threaten” Jews or Buddhists or Hindus or Muslims, or atheists before town council meetings held here in these United States? Well, that surely would be good.

But it is not enough. The Supreme Court has gone too far this time, and its conservative majority has upset the delicate balance that must be maintained among the various rights enumerated within the 1st Amendment. All of those rights need to be taken into consideration, and those of Christians to say their prayers ought not to take precedence. That, after all, is the essence of what it means to live a pluralistic society. In a balanced way, this is what the 1st Amendment should protect, and this is what we ought to expect of a fair and even-minded judiciary. Unfortunately, as has happened far too often of late, this Court has failed to do its job, and as such has done a great disservice not only to the people – all the people, Christians and non-Christians alike – but also even to its own constitutional mandate.

A GREAT DAY FOR HUMAN RIGHTS

By Paul

It became official yesterday.  The so-called Defense of Marriage Act (DOMA) was struck down by the Supreme Court, and the federal government must now recognize same-sex marriages in states and jurisdictions where they are legal.  This means that all same-sex couples married in those states become eligible for the full panoply of federal rights accorded to any other married couple.  Additionally, California’s Proposition 8 has not been upheld.  In this case, the ruling was on a narrower basis and stated that the plaintiffs did not have standing, or the right to appeal, the lower court’s ruling invalidating Prop. 8.  Although the DOMA ruling was much broader, both cases are great victories for gay rights, which are also human rights.   It will take a while still, however, before same-sex couples in California are allowed to marry, as the Attorney General has instructed that the injunction issued by the Ninth Circuit as part of the appeal process is still in force, and no marriages can be performed until that order has been rescinded.  In all likelihood, it appears as though this could take as much as a month to accomplish.

These are, in essence, the legal facts of the rulings.  More detail will undoubtedly be forthcoming in the days and weeks ahead, but the essence of each ruling is that millions of people who have had their civil rights abridged, or denied outright, now have them upheld.

Aside from the legalities involved, however, what does this mean on a more personal, a more human level?  My partner and I, for example, have been together for over 33 years, and we feel as “married” as any other couple who has lived together for that long under the approbation of the law.  We have had a Domestic Partnership for more than 13 years, specifically since Feb. 16th, 2000, which guarantees legal rights within California, as much as it is also clear that such a document has never had the same moral or cultural impact as does marriage.

But as enormous as these rulings undoubtedly are, neither does this mean that the debate over same-sex marriage is over in this country.  All we have to do is to glance even fleetingly at Justice Scalia’s blistering dissent on the DOMA ruling to see some of the language still being used.  He referred to that ruling, for example, as “legal argle-bargle” (a new term to me, I have to admit, but apparently a Cockney expression referring to energetic, but worthless comments).  He further goes on to claim that Justice Kennedy’s majority opinion, that the effect of DOMA was “to demean those persons who are in lawful same-sex marriages,” amounts to “an accusation which demeans this institution” (i.e. the Supreme Court).  He continues by going on to say that Wednesday’s decision was, in fact, inevitable once the court had earlier sanctioned “homosexual sodomy.”

Homosexual sodomy:  do we not have here an example par excellence of super-charged moralizing?  But this is fairly typical of the superior, self-righteous, moralistic language used by many conservatives in regard to gay marriage and to gay people generally.  It is, as I see it, a way of both demeaning and minimizing loving relationships between two women, or two men, and at the same time attempting to reduce them to nothing more than sexual activity, and despised sexual activity at that.  How many straight marriages, to take the opposite point of view, have we heard so reduced to mere “legalized sex”?   If we do not do so with regard to men and women in marriages, and if instead we accord to them the full range of human emotion, to include love and mutual dedication and commitment, as well as sex (let us not forget), then why would a sitting justice of the Supreme Court of the United States think it legitimate to do so in regard to two women, or two men?

In one sense, this seems to me to be as much at the heart of today’s decisions as do all of the also critical legal and economic issues at stake.  What I mean is that we are now entering into the realm of the deeply personal, the emotional, the world of caring, of warmth, of closeness, of mutual respect and profound, enduring, even magical togetherness.  Not that marriage is always easy or even fun!  Anyone who has ever lived with another human being for a considerable length of time knows that each can get on the other’s nerves, that there will be inevitable disagreements and misunderstandings.  As with anything truly worth its salt, though, marriage takes work, it takes persistence, and determination, and dedication, and, well, yes, it takes love.  Love is, in fact, the glue that holds it, that binds two people together, the fact that they love each other and that they are willing to put up with each others oddities and quirks and faults, as well as enjoy all of the wonderful qualities which, we assume, drew them together in the first place.

This is what gay marriage is all about, just as it is with regard to heterosexual marriage.  Sex, while an important and even a delightful part of any marriage, is not its sole definition.  Gay marriages, therefore, are not about “homosexual sodomy,” anymore than straight marriages are about heterosexual vaginal sex.  And to so reduce either to its mere sexual component truly does demean the deeper, and frankly sometimes more satisfying other meanings that come with the lifetime commitment of two human beings to each other.

So, will my partner and I become husband and husband, spouses under the law, once California finally allows us to do so?  That is a decision which we will talk about in the days to come.  As I have already alluded to, each of as has repeatedly said that we already “feel married.”  So, whether or not we deem it necessary to formalize those feelings in a legal ceremony will be something we will decide, as much as it looks as though there will be benefits to doing so, not least of which would be that we would no longer have to pay extra federal taxes.

I would be less than honest, too, if I did not admit that each of us has felt that traditional marriage isn’t necessarily all that grand of a thing to strive for.  How many marriages have we all seen, for example, that barely work, where the couple in question seem merely to  tolerate each other, or who stay together out of simple inertia, or some imagined fear of loneliness or of going-it-alone?  That is not our relationship, but then of course neither is it necessarily the description of every traditional marriage.  Indeed, marriages, like all things human, come in both the good and the not-so-good variety.

Personally, I don’t even like the term “same-sex marriage.”  Again, the emphasis there seems to me to be only on the sex, rather than on the huge gamut of human feelings and emotions and needs and hopes and aspirations, all of which intertwine and intermingle into the mystery of two individuals living together and cherishing each other.

I would rather call it love, as simple and as corny as that may sound.  Because love is what draws two people together in the first place, of whatever gender, and it is what keeps them together through all of the difficulties and tests and challenges life may throw at them.  Justice Scalia, and some of his supporters, may not get that, but this is what marriage is all about.  This is why two people ought to live together.  And this, in the end, is why they should marry.