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.