The fight to confirm or reject Neil Gorsuch, President Trump’s nominee for the Supreme Court, has only just begun. Preliminary maneuvers are being overshadowed by the fight within the courts over Trump’s proposed refugee and travel bans. But things will soon heat up.
Already Republicans are praising, and Democrats condemning Judge Gorsuch’s views. For example, Senator Ron Weyden, a liberal Democrat from Oregon, has tweeted that “The Gorsuch nomination represents a breathtaking retreat from the notion that Americans have a fundamental right to Constitutional liberties, and harkens back to the days when politicians restricted a people’s rights on a whim.” Wow. Pretty heavy stuff. Meant to be scary.
So what is it about Gorsuch that has everyone in a frenzy of either fear or adoration? Simply put—Gorsuch’s judicial philosophy.
Gorsuch is a believer in originalism, which has been defined as the belief that “A justice’s job is to construe the text of the Constitution or of statutes by discerning and accepting the original meaning the words had to those who ratified or wrote them.” In other words, when judges seek to exercise their power of judicial review—i. e., to determine whether a law is unconstitutional—they must interpret both the law and the portion of the Constitution in question to mean what those who wrote or ratified them intended them to mean.
Political liberals, such as Senator Weyden, usually condemn originalism for fear of the public policy consequences that using originalism may lead to. They therefore ridicule originalists as taking too seriously the views of the white men, now long dead, who wrote the Constitution centuries ago, and argue that judges today should consider the Constitution a ‘living document,” the meaning of which changes from one generation the next as society’s norms and values evolve.
Granted, how one interprets the Constitution does depend on what judicial philosophy is brought to bear. For example a believer in the “Living Constitution” might argue that because western democratic societies now reject the death penalty, even for murder—an idea supported by the fact that most western European democracies have, in fact, abolished the death penalty. However, an originalist might argue that while the Constitution says that no person may “be deprived of life…without due process of law,” the wording seems to indicate that those who wrote the Constitution believed someone could “be deprived of life” with due process. The Constitution also says that nobody may be tried or punished for a “capital” crime, i. e., a crime punishable by death, unless he’s been indicted by a grand jury. Doesn’t that mean that he can be tried, convicted, and even executed if he was indicted by a grand jury and his case was handled with due process of law?
But it’s wrong for anyone, liberal, or conservative, to assume that originalism automatically leads to conservative public policies. For example, one of the liberals’ greatest fears is that a Supreme Court dominated by originalists may overturn the Roe v. Wade abortion rights decision on the grounds that nowhere in the Constitution are abortion rights mentioned, and therefore the Court was wrong to create or discover such a right. But as Justice Antonin Scalia—America’s foremost originalist, once noted that in the absence of any mention of abortion rights, each state would then have the freedom to fashion whatever abortion laws it chose. The California law granting abortion rights, widely considered the most liberal in the nation, was passed by the legislature and signed by Governor Reagan years before Roe v. Wade. See https://www.youtube.com/watch?v=FrFj7JAyutg.
Justice Scalia also argued that the flag burning was constitutional because it was considered an acceptable form of free speech at the time the Constitution was written. Moreover, as an op-ed the Washington Post—hardly a conservative newspaper—noted approvingly, Scalia’s originalism led him to become a stout defender of the civil liberties of criminal defendants, as defined by the Bill of Rights, regardless of what Senator Weyden thinks. See https://www.washingtonpost.com/opinions/antonin-scalia-part-time-liberal/2017/01/26/96ed337e-e28b-11e6-a547-5fb9411d332c_story.html?utm_term=.62cd5d1ab998&wpisrc=nl_headlines&wpmm=1.
Scalia liked to note that originalism doesn’t really forestall changing the meaning of the Constitution. But it does require that changes in the Constitution must be made democratically, and not simply by the decree of unelected Supreme Court judges using their own values to say what they think the Constitution should mean. After all, the writers of the Constitution themselves believed that it might well be necessary to amend it and prescribed several ways to do so. The most commonly used way has been to pass constitutional amendments by a two thirds vote in both the Senate and the House of Representatives, which must then be ratified by three fourths of the states. Senators, Representatives, and state lawmakers are all—ahem–democratically elected for limited terms and are thus accountable to the people. Supreme Court justices, who are appointed by the president, confirmed by the Senate, and allowed to serve for as long as they choose, are not so democratically accountable.
So contrary to what liberals would have us believe, originalism neither guarantees the making of conservative public policy nor requires us to always accept the values of dead white males (most of whom either owned slaves or were at least from states where slavery was legal in 1787). Originalism recognizes the right of the states to pass whatever laws, liberal or conservative, they choose, at least on issues on which the Constitution is silent, and challenges We, the People, acting directly as citizens or through our democratically elected state and federal lawmakers, to actively seek to bring the Constitution into sync with modern times to the degree we see fit. For We, the People to make our laws and amend our Constitution democratically is not as easy as hoping unelected judges will issue decisions we like, but that’s the way it is—or at least the way it should be. Nobody ever said democracy was easy.
Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present). He was Mayor Pro Tem of Stephenville from 2008 to 2014. He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.