Supreme Court Nominee Gorsuch: Is “Constitutional Originalism” a Cover for Conservative Judicial Activism?

I hear President Trump was going to make the announcement of his Supreme Court nomination during the Super Bowel half time show – afraid of massive demonstrations  by 300 pound guys in shoulder pads – settled for prime time bumping favorite TV shows.

The Democrats have to decide: political strategy, a game plan, and, the question of the candidate himself.  The New York Times editorial opines the choices.

In spite of the accolades heaped on the nominee I have doubts, serious doubts.

The nominee defined himself as an “originalist” in the footsteps of Justice Scalia.

What is “originalism?”

One definition,

Originalism, in which the meaning of the Constitution is interpreted as fixed as of the time it was enacted, and non-originalism, in which the meaning of the Constitution is viewed as evolving with changes in society and culture.

Another,

“…  there is an identifiable original intent or original meaning, contemporaneous with a constitution’s or statute’s ratification, which should govern its subsequent interpretation. The divisions between these theories relate to what exactly that identifiable original intent or original meaning is: the intentions of the authors or the ratifiers, the original meaning of the text, a combination of the two, or the original meaning of the text but not its expected application.”

How do we know the intent of the framers of the Constitution? From April until September of 1787 the fifty-four  delegates, all white men, mostly wealthy, including slaveholders from the Southern states. drifted in and out of the sessions. They argued, threatened, proposed deals, traded this for that, and, eventually produced a heavily compromised document.

The large states and the small states, the slave states and the free states, farmers and plantation owners, lawyers and fools cobbled a constitution..  In order to gain passage compromises were crafted: in the 3/5 compromise slaves were counted as 3/5 of a person in the computation of population to determine the number of representatives for each state. Although many of the delegates found slavery reprehensible the question of slavery is absent form the final constitution.

(Read Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Jefferson, 2001 and a summary and review of the book here).  It took another seventy-five years and a war that cost 600,000 lives to end slavery.

Are there transcripts of the debates at the convention?

No, the Constitutional Convention was a secret meeting, press was excluded, no transcripts were recorded. In fact, the only record, aside from the minutes, are the 600 pages of the journal kept by James Madison. The journal was not released until 1836, and, as we now know, was edited extensively by Madison well after the convention. The edits were made to make Madison look better (Read a discussion here).

Max Ferrand, in 1911, published the Records of the Constitutional Convention 0f 1787, a compilation of both the minutes and the Madison Journals in chronological  order of the events.

Mary Bilder, “How Bad were the Official Records of the Federal Constitution” writes,

… the members at the Convention created the Constitution without solving or even having to think extensively about the problem of constitutional interpretation.

The 1787 Constitution is not a poem, statute or even a modern constitution. It is a series of words, structures, votes, compromises and alternatives done in convention. Constitutional interpretation postdated the Constitution.

The contemporaneous interpretation of the constitution, or at least as close as we can come, are the Federalist Papers, what we would today call op ed pieces written in the fall and winter of 1787-88 by Madison, Hamilton and Jay to urge voters to ratify the constitution. The eighty-five articles are as close as we can come to “interpretations.”

In Federalist 10 Madison wrote,

Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. 

 A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good.

No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens?

Madison’s “interpretation” describes current day politics with eerie accuracy.

Even if the nominee has inherited Justice Scalia’s Ouija Board the term “originalist” is simply  meaningless. What does applying the thoughts of the founders in 1787 mean in 2017? Would we apply the thoughts of the founders to science? to mathematics? Why only to the law?   Are there liberal or progressive “originalist” judges?  The term “originalist” is simply a cover for conservative justices.

We need justices who honor stare decicis, or precedent. We require justices who honor prior decisions. Would the nominee overturn Roe v Wade? Brown v Board of Education? Voting Rights?  Of course: he may have graduated from Harvard Law School (I graduated from the Harvard on the Hudson: The City College of NY), he may write elegant decisions, his views are clearly out of step with the mainstream of our nation in 2017.

I agree, judges should not make law; however, judges have the obligation to remedy injustices.

Section 1 of the 14th Amendment to the Constitution reads,

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Marriage equality, voting rights, labor rights, according to my reading, fall under the protections of the 14th amendment.

The nominee may be the “golden boy” for those on the right, I believe he represents the fears that Madison expressed, I believe he intends to impose his narrow, archaic recidivist beliefs on the nation and for that reason he is not qualified to serve on our highest court.

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One response to “Supreme Court Nominee Gorsuch: Is “Constitutional Originalism” a Cover for Conservative Judicial Activism?

  1. Back in the day, many of us learned that what is now commonly referred to as Conservative Originalism, was called Strict Interpretation of The Constitution. Those who oppose this view are those who espouse to a Loose Interpretation of the Constitution. The rub here, is that while one viewpoint prevails, it is not to be honored by the opposition, or for that matter respected. Certainly, I believe that given the length and breadth of our constitution, and the issues that american Society are confronted, that there is room for valid argument to both the strict and loose interpretations of our founding document. What I do not believe and won’t believe is the open defiance and refusal of the left to respect the views of the right. To paraphrase Pres Obama, “they won”.

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