One of the key debate points in the Senate hearings involving Supreme Court nominee Neil Gorsuch has been originalism, Gorsuch’s judicial philosophy. Many Democrats have suggested it is regressive, and a flippant Cosmopolitan article gave 9 reasons “Constitutional Originalism Is Bullsh*t.”
In questioning Gorsuch Tuesday, Texas Senator Ted Cruz noted that many Democrats “have painted originalism as some quaint and outdated mode of interpreting the Constitution, that their view of the Constitution as a living, breathing, changing document is flexible enough to accommodate whatever policy outcome a judge might desire.”
Although Gorsuch is well-known to adopt the philosophy of originalism, he qualified his position numerous times on Tuesday. “I’m happy to embrace that, I don’t reject it,” he said in response to Louisiana Senator John Neely Kennedy. “I just am concerned about the level of our discourse in this society today when we’re often quick to dismiss one another — Republican, Democrat, whatever.”
This statement was rather wise, as many seem to have large misunderstandings about what originalism actually is. Here are five myths about it.
1. Originalism is regressive.
Who would have thought Senate Judiciary Committee hearings in 2017 would ring with discussions about “horses and buggies”? But Gorsuch is on record declaring, “No one is looking to go back to horses and buggies.”
California Senator Dianne Feinstein seemed not to understand this, however. She argued that originalism “means the judges and courts should evaluate our constitutional rights and privileges as they were understood in 1789.” Feinstein argued that “to do so would not only ignore the intent of the framers that the Constitution would be a framework on which to build, but it would severely limit the genius of what our Constitution upholds.”
The California senator stigmatized anyone who disagrees with her “living Constitution” view as a misogynistic homophobic racist who supports segregation.
“At the time of our founding, African-Americans were enslaved,” Feinstein declared. “It was not long after women had been burned at the stake for witchcraft.” She argued that “if we were to dogmatically adhere to the originalist interpretation, then we would still have segregated schools and bans on interracial marriage. Women wouldn’t be entitled to equal protection under the law and government discrimination against LGBT Americans would be permitted.”
But being an originalist means accepting the original meaning of the words of the Constitution — and all settled law and amendments based on its framework. It does not mean rejecting duly passed Constitutional amendments. Furthermore, does Feinstein really believe that Congress would pass a ban on interracial marriage or a law to racially segregate schools?
2. Originalism means law doesn’t evolve.
In her Cosmopolitan article, Jill Filipovic argued that originalism would invalidate law’s application to modern-day technology. She quoted the Fourth Amendment, which guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” without a proper warrant and probable cause.”
“Under a strict textual reading, would the Fourth Amendment apply to cars, which the founders didn’t have?” Filipovic asked. “What about to government wiretaps of personal telephones, which also didn’t exist when the Constitution was ratified? A strict reading would allow broad government surveillance and the exact kind of tyranny the founders were trying to block.”
Wait — so the Cosmopolitan writer admits she knows what the founders meant in writing the amendment, but argues that originalism (which involves applying what the founders meant in writing it) would actually invalidate their meaning?
Originalists would interpret “unreasonable searches and seizures” to apply to the property of modern people, including cars and cell phones. After all, the plain text refers to the people’s right to be secure in their “effects.” This means to be secure in their possessions, broadly. So, no, an originalist would not invalidate the Fourth Amendment.
Gorsuch addressed this very issue on Tuesday. He noted that the founders and legislators after them “don’t contemplate a lot of things that arise.” So when it comes to “unreasonable search and seizure, these are broad terms. But we can give them content by looking to what the original understanding at the time was, what a reasonable person would have understood them to mean.”
In this case, a reasonable person would have understood the term “effects” to include personal possessions like cars and cell phones.
3. Originalism goes against the founders’ intent.
When Senator Feinstein said the founders intended the Constitution to be “a framework on which to build,” she was correct. She was wrong to apply that to a “living Constitution” view, however.
Filipovic repeated a similar argument. “The framers of the Constitution didn’t offer any instructions for how to interpret the document, nor did they get into specifics on what each of its provisions meant,” the Cosmopolitan writer wrote. “Instead, they offered broad concepts that, two centuries later, remain broadly applicable.” She called the “founding principles” “sacred but nimble.”
None of this is a mark against originalism. For instance, what does the Constitution say about taxes, for example? Well, the 1789 document did not give the federal government the right to collect income taxes. So, in 1913, the required 38 states ratified the Sixteenth Amendment, enabling the federal government to levy an income tax.
An originalist would not protest that income taxes are unconstitutional — that would be a misinterpretation of the law.
But on matters where the Constitution explicitly grants power to the executive or legislative branches, the law is even clearer. An originalist is bound by the laws of the country. Unlike a believer in the “living Constitution,” an originalist cannot effectively make law by reinterpreting it — as happened in the Supreme Court case Obergefell v. Hodges, where Justice Anthony Kennedy essentially reinterpreted the Constitution to create a new right to dignity.
Such actions are judicial overreach. The founders set up a system to allow the people to change the law — through Congress and the president, and through the amendment process. If a bill legalizing gay marriage or a constitutional amendment doing so passed according to the rules in the Constitution, that would be following the original intent, and it would have the exact same effect.
4. Originalism allows the government to run wild.
Somehow, Cosmopolitan‘s Filipovic convinced herself that adhering to the strict interpretation of the Constitution as the founders intended would entail allowing the government to do almost anything.
“If you’re a strict originalist — which in reality not even self-identified originalist judges really are — then it follows that if the founders didn’t specifically bar the government from doing something, the government is free to do it,” Filipovic declared. “This, of course, would be disastrous — what would block the government from imposing a China-style one-child policy or mandating sterilization of all men caught possessing marijuana?”
This question betrays a huge ignorance of the plain text of the Constitution. The founders specifically wrote the document to enumerate the powers the federal government had, and limited those powers so much that one phrase — the “Commerce Clause” — has been used to justify vast amounts of law, on the sometimes rather tenuous argument that a specific law rests on Congress’ power to regulate interstate commerce.
Indeed, the Ninth and Tenth Amendments make the limits on the federal government painstakingly clear:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The Constitution specifically states that the federal government has limited powers, and that the tendency of American law is the exact opposite of the presumption Filipovic presents. The starting point in American law is not, “Does the Constitution expressly forbid the government do this? No. Ok, let’s do it.” But rather, “Does the Constitution expressly empower the government to do this? No. Then it’s wrong.”
5. Originalism is an excuse to do what you want.
Many Democrat senators, in questioning originalism, seemed to imply that the judicial philosophy was merely an excuse for conservative judges to support Republican causes, to support big businesses over people, or to generally side with whomever the judge preferred. Perhaps no case disproves this notion — at least when it comes to Gorsuch — than the infamous TransAm case.
In TransAm Trucking, Inc. v. Admin. Review Brd., a case mentioned over and over again by Democrats, Gorsuch dissented from his fellow judges on the 10th Circuit Court of Appeals, arguing that the law did not prevent a company from firing a “frozen trucker” who decided to operate his vehicle. The law which the company allegedly broke only forbid the firing of an employee for “refusing to operate” a vehicle.
Democrats focused on this case because it suggested Gorsuch left a frozen trucker out in the cold. But the judge is not an evil maniac, searching for any way to condemn an unlucky employee. As he explained in his dissent, he was compelled by the law.
It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.
Louisiana Senator John Neely Kennedy said this dissent made Gorsuch “about as popular as Cholera.” But Kennedy also pointed to another dissent the judge issued, just last year.
“Often enough the law can be an ass,” Gorsuch wrote, quoting Charles Dickens’ famous classic Oliver Twist. “And there’s little we judges can do about it, for it is or should be emphatically our job to apply, not rewrite, the law enacted by the people’s representatives. Indeed, a judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels.”
In this particular case, Gorsuch was dissenting from a decision he considered unpopular. “So it is, I admire my colleagues today, for no doubt they reach a result they dislike but believe the law demands, and in that I see the best of our profession and much to admire,” the judge added. “It’s only that, in this particular case, I don’t believe the law happens to be quite as much of an ass as they do. And I respectfully dissent.”
Kennedy asked Gorsuch point blank, “Is that what happened in TransAm?”
The nominee responded meekly, “That’s who I am, senator.”