Monday, March 20, 2017

Will Neil Gorsuch Be the Court’s First Originalist?

by David S. Cohen & Eric Segall

When Donald Trump nominated Judge Neil Gorsuch to the Supreme Court, he praised him as someone who will interpret the Constitution “as written.” Commentators from both sides of the aisle have described him as an “originalist” who will, in Gorsuch’s own words, rely on “text, structure, and history” to interpret the Constitution rather than his “own moral convictions.”
When claiming that Gorsuch is an originalist, most people liken him to Justice Scalia or Justice Thomas, two Justices who are also widely regarded as originalists. However, if Gorsuch is confirmed and consistently practices originalism on the bench, he will in fact become the Court’s first originalist Justice.

Originalism is a theory of interpretation whereby judges identify and then rely on the original meaning of the Constitution to resolve constitutional cases. In other words, in order to interpret the Constitution’s text, an originalist looks at what the language of the text was understood to mean at the time it was adopted.

Recently originalism has become most prominently associated with Justice Scalia. Scalia spent much of his last years on the bench touring the country telling audiences that the Constitution, far from being a living document, is “Dead, Dead, Dead.” Stated less pithily, the Constitution’s meaning is fixed at the time it was adopted and does not change with the times.

To Justices like Scalia and Thomas, originalism has two values. First, it respects democracy because it gives weight to what the people who voted for a constitutional provision understood it to mean. Second, originalism prevents judges from imposing their own views on the law by fixing the law’s meaning separate from the judge’s.

However, despite many Justices extolling originalism’s virtues, no Justice has ever consistently applied the theory. Part of the reason is that the search for original meaning is often fruitless. It is difficult, and sometimes impossible, to ascertain what people who lived hundreds of years ago thought about issues they could not foresee, such as Presidential drone strikes on American citizens abroad.

But more importantly, even originalism’s most ardent supporters jettison the theory when it doesn’t suit their purposes. One obvious example is affirmative action. There is no credible originalist case for the Supreme Court to find that the Constitution prohibits states from adopting affirmative action plans. In the 1860s, when the Fourteenth Amendment’s Equal Protection Clause was adopted, Congress took several measures that explicitly helped former slaves, and those measures were based on race. A real originalist would recognize that the original understanding of the Fourteenth Amendment was consistent with affirmative action and uphold the practice. However, Justices Scalia and Thomas have always been silent on the issue of originalism when affirmative action was before them and consistently voted against it. They argue the Constitution is color-blind, a principle that is deeply embedded within their conservativism but is nowhere mentioned in the Constitution, nor supported by its history.

Originalists have it even worse when it comes to affirmative action programs adopted by the federal government. For technical reasons, those programs are challenged not under the Fourteenth Amendment but rather under the Fifth Amendment, which was adopted in 1791. It is beyond argument that the original meaning of the Fifth Amendment has absolutely nothing to do with race equality, and for a very obvious reason: this country was almost as far from color-blind as possible in 1791. After all, slavery was the norm in a large swath of the country. Since there was no principle against race discrimination in 1791, a true originalist would have to rule that the federal government was allowed to act based on race; however, Justices Scalia and Thomas have unflinchingly struck down these programs as well.

Why have they ignored originalism here? Because, like every other Justice who has served on the Supreme Court, they use a mix of methods to decide cases, including thinking about what outcome they want. Being ideologically conservative, Justices Scalia and Thomas often support conservative outcomes, even when doing so is inconsistent with originalism.

Thus, during the coming week’s confirmation hearings, if Gorsuch claims, as we all expect him to do, that he is an originalist, Senators should question him closely. Is he an originalist when it comes to affirmative action?  Or, taking another issue that is conservative orthodoxy but hard to square with originalism, about whether corporations are people under the First Amendment?

They should also question him about issues where originalism would put him embarrassingly out of step with modern times. Such as whether states can exclude women from juries, ban contraception, or stop black and white people from marrying. Or, separately, whether the District of Columbia can have segregated schools. An originalist has to say yes to all of these because there is no evidence anyone who voted for the relevant constitutional provisions would have understood them to mean otherwise.

To be sure, many scholars who call themselves originalists will answer no to some of these questions, because they define original meaning at such a high level of generality as to make originalism indistinguishable from living constitutionalism. But in doing so these newfangled versions of originalism sacrifice the two ostensible virtues of originalism: democratic legitimacy and judicial constraint. Senators should not permit Judge Gorsuch to evade their questions by redefining originalism this way.

The upcoming hearings are the best chance for the American people to know more about Gorsuch and his proclaimed judicial philosophy. Is he going to, like his predecessors, use originalism only when it suits him, but ignore it when the results are contrary to his personal views or completely at odds with modern society? Or will he use originalism in every case, including approving affirmative action and denying women an equal role in society?

If he chooses the latter and consistently stands by originalist principles, he would indeed be the Court’s first originalist.


Joe said...

I find a certain argument overblown.

"It is beyond argument that the original meaning of the Fifth Amendment has absolutely nothing to do with race equality, and for a very obvious reason: this country was almost as far from color-blind as possible in 1791."

The 5A applied to the federal government and the fact states had slavery is a telling point there. The federal government had a duty to treat a black person, who very well could have been a citizen in a few places (see, e.g., Justice Curtis, dissenting in Dred Scott v. Sandford) in certain basic ways like they treated white persons. It isn't necessary to meet "absolutely nothing," but I would argue even a SLAVE was a "person" as a matter of federal constitutional law here. There was in that fashion some basic core equality, everyone a person.

"Equality" doesn't mean total equality. The 5A speaks of "persons" and there is a core of equality present, but different groups of people even now are treated differently in various ways. Anyway, the reason blacks were treated differently here per the argument was slavery. That was the legitimate state interest at issue to justify treating blacks differently. But, the 13A ended slavery. It's like suggesting women not voting, not being a member of the electorate, is an originalist reason to deny them various citizen rights, since if you couldn't vote etc., on a basic level it is legitimate to treat you as such. The 19A changed that though.

Joe said...

Anyway, fellow commenter here Shag surely knows this from his readings, "originalism" means so many things, has so many shades, that it's important to determine what exactly this guy means by that. And stuff like this:

Shag from Brookline said...

At least a 100 shades of originalism ... and counting. Those shades can block off the sunlight in seeking fairness and justice. Prof. Amar had an interesting Op-Ed at the NYTimes in which he referred to the Warren Court as being influenced by originalists on that Court. The 1970s movement of originalism as many know it today was in response to the "activism" of the Warren (and Burger?) Court, apparently creating a clash of originalists, producing those 100 shades.

Shag from Brookline said...

Here is the URL for Prof. Amar's Op-Ed:

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Shag from Brookline said...

Here's a timely article by historian Jonathan Glenapp "Constitutional Originalism and History"

with a concise history of the originalism movement and differences between originalists and historians, written with the nomination of Judge Gorsuch in mind as the judge claims to be an originalist.

Joe said...

As to Amar, my 10 free articles ran out, so did not read it.

But, there was various use of history and "originalism" of some sort during the Warren Era. A major example would be Justice Black though his conclusions of where that lead resulted in major disputes between him and others (e.g., Frankfurter/Harlan along with Charles Fairman* regarding incorporation). Brown v. Bd. and other cases noted the limits of original understanding; see also, a poll tax case where it was noted that the understandings of equal protection do change. Justice Black, however, did dissent in that case.

The limits and lack of thereof regarding restraint of using history and text (originalism and textualism often are confused, from what I can tell from reading various comments over the years) were suggested by Justice Harlan's concurring opinion in Griswold v. Connecticut. Harlan offered his own principles to follow, which at times led him in liberal directions. So, to belabor the point, details, details, Judge Gorsuch.

(Him being "fair" as well as "human," to cite two things that came out in today's hearings is of limited value to me.)