Supreme Court nominee Judge Neil Gorsuch. (Photo: Diego M. Radzinschi/ALM)
Many oppose the nomination of Neil Gorsuch to the Supreme Court because, as one Washington Post headline trumpeted, he favors “big business, big donors and big bosses.” While I agree that the values Judge Gorsuch supports or rejects are cause for deep concern, I want to offer a different reason for opposing Gorsuch’s nomination.
I would vote against any nominee to the Supreme Court who stated that he or she adhered to originalism in construing the U.S. Constitution. Given that Gorsuch’s judicial writings are widely understood as presenting him as an originalist, that would be my main objection.
At its heart, originalism claims to eliminate improper judicial law-making in construing the Constitution. It does that by promising that historical materials pertaining to the Constitution’s adoption contain definitive answers to contemporary constitutional questions.
That attractive idea falls apart upon analysis.
The theory requires that we determine whose understanding of the original Constitution is definitive. But originalists disagree on this critical point.
Some concentrate on those individuals who wrote the Constitution. Others focus on the state representatives who decided to vote for or against the Constitution. And still others emphasize the Constitution’s meaning to the general public. Because these three groups might have had different understandings of the Constitution, this disagreement over such a threshold issue unravels originalism’s promise.
But assuming originalists did agree on this matter, this interpretative methodology is fundamentally flawed for additional reasons.
Originalism requires judges to be historians, and judges are not educated to be historians. Indeed, it is frequently stated in critical terms that judges practice “law office history,” which is not history at all. Judges lack the time to honor the demanding historical method, which requires familiarity not only with secondary sources, but with primary sources such as diaries, letters, memoranda and newspapers.
Originalism assumes that historical evidence yields definitive and comprehensive answers to contemporary constitutional questions. The fallacies here are evident. History is complex and historical inquiries into important and open-ended questions are likely to yield a variety of plausible answers to the same question.
Thus, the premise of originalism is naive, unrealistic and unsupportable.
Moreover, what would late 18th century figures have to say about the constitutional authority of a president to use atomic weapons in a peremptory strike against a foreign power when the Congress has not declared war and with which the United States was not then involved in a military conflict?
Are we really looking for “their” answers to such questions, or are we wondering what they would have thought about the Constitution’s meaning if they lived in our time and knew what we now know? This is magical and it makes originalism a farce.
Originalism also implodes over rights not mentioned in the Constitution — so-called un-enumerated rights — but which are nonetheless considered fundamental.
For example, the text of the Constitution does not guarantee the right to have children. Nonetheless, originalists agreed with others that this is a basic right and that the Constitution protects it as it does rights explicitly mentioned in its text, such as the right to a free press, free speech and the free exercise of religion.
Thus, if a state made it a felony for a person to be the biological parent of more than one child, an originalist would invalidate such a law because it conflicts with an un-enumerated right that should be protected. While that result would be generally applauded, it is flatly inconsistent with originalism’s promise to constrain judicial discretion.
Lastly, although this is not an exhaustive list — the framers of the Constitution were ultimately pragmatists who endorsed a brief Constitution. That meant that only the Constitution’s “great outlines [were] … marked” and its “important objects” designated. The duty of all who were called upon to construe the Constitution was, as Chief Justice John Marshall wrote, “never [to] forget that it is a constitution we are expounding,” by which he meant that it was written in general terms to permit it to be construed in light of changing circumstances.
Thus, the Supreme Court appropriately adapted the Constitution to modern technology when it applied the Fourth Amendment to telephone surveillance and broadly construed the commerce clause power. Nonetheless, an originalist must reject such sensible thinking as inconsistent with the theory’s basic tenets.
Because of its fatal flaws, originalism fails to be descriptive of more than 200 years of Supreme Court history and makes promises that cannot be kept.
Anyone who is as able as Gorsuch knows that. As a result, instead of being a modest judge who states that he will not make law, he knowingly misleads the American public as to the scope of discretionary authority originalism invests in a judge. In my mind, this disqualifies him from becoming a Supreme Court justice.