The U.S. Supreme Court, Neil Gorsuch, and Originalism

March 20, 2017

The U.S. Supreme Court, Neil Gorsuch, and Originalism

The Senate Judiciary Committee commenced its hearings on the nomination of Judge Neil Gorsuch to fill the seat on the U.S. Supreme Court. The seat has sat empty since February 13, 2016. (For those who count, the number of days happens to be 401, but it might be an even 400, if Justice Antonin Scalia was alive after midnight.)

I won’t waste time on the nonsense associated with the 401-day gap. (Historians will give the Republican Senate no mercy, for sure.) Instead, I’m prompted by What Gorsuch Has in Common With Liberals, a piece which Professor Akhil Reed Amar wrote for the New York Times on March 18.

Professor Amar is a rock star in the legal academy. He teaches at Yale, and writes very well on constitutional subjects.

In the piece he posits that originalism does not lead inevitably to conservative outcomes. He attributes to originalists the belief “that faithful constitutional interpreters must build on the solid bedrock of the Constitution’s text, as that text was originally understood when drafted and ratified.” Originalism—as a doctrine carrying that appellation—has been around for about 30 years. Its main adherents? Judge Robert Bork, and Justices Clarence Thomas and Scalia.

Professor Amar does a fine job knocking down the notion that originalism leads, necessarily, to conservative outcomes. He does so, especially, by noting the failure of originalists to mind the amendments to the U.S. Constitution. Harshest words?

Too often, Justice Scalia stopped reading. He failed to read the Constitution’s text all the way to the end – to give due weight to its transformative amendments added by post-founding reformers.

Professor Amar meets originalism on its own terms. I don’t!

Originalism depends on the premise that there was an original understanding of the text of the Constitution. Without doubt, there are provisions to which that premise applies. Take, for example, Article 2, Section 1. It mandates that no one can be President of the United States “who shall not have attained to the age of 35 years … .” No basis exists for questioning what the drafters meant by the quoted words.

On the other hand, there are the words which surround the quoted clause. They refer to the president having to be “a natural born Citizen, or a Citizen of the United States” and, later, to being “fourteen Years a Resident within the United States.” Do we know with any degree of certainty what those words meant to the drafters? And, more importantly, do we have any reason to believe all of the signors agreed on the meaning of the terms? Or that their thoughts might be consistent, depending on the facts to which the words might apply?

In less grand, transactional settings I deal with people who don’t always agree completely. People often—usually might not be an exaggeration—interpret the words in their own way. They like potential ambiguities and the opportunity to “continue the discussion” later. Why do we assume no such conduct on the part of the Founding Fathers?

There’s a grand conceit associated with the founders. Yes, they all had that prosperous, late 18th century look. But they surely disagreed about much. Take, by way of example only, Thomas Jefferson on the federal courts. He did not accept the notion that the Constitution gave them the power they got. Others—certainly, John Adams—saw the matter differently. Now, these men are saintly figures, indistinguishable to many, albeit not to Bork, Scalia, and Thomas.

I have one other big problem with originalism. The founders could not begin to think about technology, globalization, or any of the myriad issues which get presented to the Court in the 21st century. Originalists look back, trying to determine how they can apply first principles to modern times. In doing so they ignore the fact that the framing determines the outcome. Take, for example, Brown v. Entertainment Merchants Association, a 2011 Supreme Court case in which the Court struck down on First Amendment grounds a California statute which imposed restrictions on violent video games.

Justice Scalia wrote for the majority. He applied first principles and history to get to the outcome. He did so with a verve sufficient to cause his ally, Justice Samuel Alito, to concur with an opinion which included this paragraph:

I disagree, however, with the approach taken in the Court’s opinion. In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar. And we should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology. The opinion of the Court exhibits none of this caution.

Justice Neil Gorsuch—he will almost surely be confirmed—will provide more opportunities to consider and discuss originalism and its role in the judging process. In the meantime, I hope we can all appreciate the fact that, even as originalism can be even-handed, its foundations are flawed.

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