Monday, September 23, 2019

Reviewing Justice Gorsuch's New Book: An Originalist Fantasy out of the Old West

By Eric Segall

Justice Neil Gorush's new book "A Republic If You Can Keep It," isn't completely awful. Made up mostly of old speeches and essays, portions of his judicial opinions, and some new content, he provides a portrait of himself as that fishin'-lovin', down home, Western cowboy who just happened to graduate from an elite prep school in Bethesda, Maryland, and then Columbia, Harvard, and Oxford. But there are photos in the book of him fishing (with Scalia even), and he talks about how he and his wife raised two daughters "along with chickens, a goat, horses, a rabbit, dogs, cats, mice, and more in our home on the prairie." He "loves the West," but if you want to know much more about his personal life than that, well you will be disappointed. In this book, he has much bigger fish to fry, or cattle to lasso, or, well you get the idea.

Much of the book is about how originalistm and textualism are great while living constitutionalism, purposivism, and pragmatism are bad. Throughout the book he discusses and provides excerpts from criminal law cases where he ruled for criminal defendants to show that even originalists and textualists can side with those accused of crimes. In this sense, and many others, he follows in the footsteps of Justice Antonin Scalia, who ruled for criminal defendants slightly more often than some might have thought likely given the rest of Scalia's priors. I believe Gorsuch does cares about the rule of law when it comes to denying people their liberty, and this prior is of course consistent with his liberty-and-freedom-loving self-descriptions (if not with originalism). And Chapter 5 of the book "Toward Justice for All," discusses important issues and failings with our civil and criminal justice systems. Here is a short summary:

"Our civil justice system is too expensive for most to afford; our criminal code is too long for most to comprehend; and our legal education system is too monolithic to allow lawyers to serve clients as affordably and well as we might." Okay, good stuff here.

Gorsuch's defenses of originalism and textualism, however, range from sophomoric to bewildering to insulting. He says he is not writing for lawyers and academics, and that's a good thing because my second year law students defend originalism and textualism better than Gorsuch does. In the balance of this review, I'm going to focus on his discussion of originalism.

Gorsuch begins by discussing the "central divide in constitutional theory today." On one side is "living constitutionalism," which comes "in more varieties than ice cream flavors at Baskin-Robins." Judges who adopt this theory, no matter the specific flavor, "share the conviction that the Constitution's meaning changes over time and that judges should determine what changes should be made based on external policy considerations." (his emphasis). 

On the other side, "lies originalism. Originalists believe that the Constitution should be read in our time the same way it was read when adopted."  But what about major changes since the Constitution was written? No worries! Gorsuch says that "originalism teaches only that the Constitution's original meaning is fixed; meanwhile of course new applications of that meaning will arise with new developments and new technologies." (his emphasis). 

Leaving aside his consistent use of italics, which is annoying, originalism these days also comes in many "flavors," perhaps even more than non-originalist theories. Moreover, Gorsuch's examples of new applications, such as applying the First Amendment to the Internet and the Fourth Amendment to "thermal imaging" are silly and unhelpful. What would Gorsuch say about equal rights for women, given that we know the drafters and ratifiers of the 14th Amendment did not believe women were protected by that Amendment? Well that's a hard question for originalists so you won't find that discussion in this book.

What you will find in the book is insult after insult to living constitutionalism and paen after paen to originalism that sound more like greeting cards than legal analysis. I'll spare you most of it, but here are two major flaws that it would be beyond human nature for me not to point out. First, Gorsuch repeatedly refers to the majority opinion in the infamous Dred Scott case as a classic example of living constitutionalism (Korematsu too but I'll let that one go). For example, there's this rant:

A majority in Dred Scott ... disregarding originalist principles, held that Congress had no power to outlaw slavery in the Territories, even though the Constitution clearly gave Congress the power to make laws governing the Territories.... Theirs was a living and evolving Constitution. And often enough it may be tempting for a judge to do what he thinks best for society in the moment, to bend the law a little to an end he desires, to trade just a bit of judicial integrity for political expediency.

Of course, the majority opinion in Dred Scott is not an example of "living constitutionalism." It is admittedly a long and complicated decision but it is hard to believe Gorsuch would disagree with a single word of this long quote from the allegedly living constitutionalist majority opinion:

No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called on to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption. It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.

There are many paragraphs in Gorsuch's book that sound exactly like this one. For example, "Originalism seeks to enforce the Constitution and its amendments consistent with the understandings of the people who were alone legally authorized to adopt them. And it seeks to prevent any alterations to the meaning of those terms through other legally unauthorized means." One wonders if he ever read Dred Scott.

At the end of his Chapter on originalism, Gorsuch says the following:

Sometimes, debates between living constitutionalists and originalists become mired in minutiae. But in the end constitutional theory is about who decides the most important questions in our society. Will it be unaccountable judges? Or will it be the people themselves? For my part, you can count me with... Jefferson, who reminds us that '[ o]ur… security [lies in] the possession of a written constitution. Let us not make it a blank paper by construction.'

Throughout the book, Gorsuch argues that originalism and textualism will keep judges in their place whereas living constitutionalism, purposivism, and pragmatism will allow unelected, life-tenured judges to impose their value judgments on the rest of us. But nowhere in the book does Gorsuch discuss the panoply of  important decisions that so-called originalists and textualists Scalia and Thomas signed on to over the years that invalidated laws without any persuasive basis in originalist or textualist methodology--cases like Shelby County v. Holder, Citizens United v. FEC, and Seminole Tribe of Florida v. Florida. That would have been an interesting discussion.

More importantly, Gorsuch himself has voted to strike down important statutes in his short time on the Court without demonstrating or even trying to demonstrate (I can use italics too) that original meaning required those results. In Trinity Lutheran v. Missouri, the issue was the constitutionality of a Missouri constitutional amendment prohibiting the giving of public funds to religious institutions. This amendment was originally passed in the late 19th century and over 20 states have similar ones. Neither the narrow plurality opinion, which limited its holding striking down the amendment to the specific facts of the case, nor Gorsuch's much broader concurring opinion, contain a word about the Free Exercise Clause's original meaning either at the time of the founding or in 1868 when the Clause was made applicable to the states through the 14th Amendment. Not a word. Here are two religion law scholars' views on the case:

[Trinity Lutheran] offered newly confirmed Justice Gorsuch a test of fidelity to the methodology of originalism, and he failed miserably. An originalist would inevitably see that the Free Exercise Clause, made applicable to the states by ratification of the 14th Amendment in 1868, should be viewed in light of the then widespread constitutional norm against direct aid to houses of worship. Justice Gorsuch’s separate opinion never engages the detailed history, offered by Justice Sotomayor, showing that bans on state aid to houses of worship were common at the founding, and nearly uniform by the time of the adoption of the 14th Amendment.

Justice Gorsuch also voted to strike down the laws of over twenty states in Janus v. AFSCME, which held that the First Amendment prohibited states from requiring non-union public employees to pay partial union dues. Other than a single citation of something Thomas Jefferson wrote in 1786, there was no discussion in the majority opinion of how the Amendment's original meaning required the invalidation of the laws of almost half the states--an opinion that dictated to state governments how to structure their own relationships with their own workers. Originalist scholar Mike Ramsey has stated that the result in Janus is not "satisfactory from an originalist standpoint."  I would suggest that Professor Ramsey is greatly understating the case.

By the time one gets to the end of the book, it is clear that Gorsuch has no interest in defending originalism against its serious critics. In his view there are good and bad judges and originalists fall into the former category and living constitutionalists (and pragmatists -- there are many cheap shots at retired-Judge Posner--) into the latter. But he offers no serious evidence to support that thesis nor does he wrestle with his own non-originalist votes. 

What is clear, however, from a reading of the entire book is that humility might not be one of Justice Gorsuch's virtues. Black and white, not shades of gray, seem to color most of his world-views. His rigid only-in-theory originalism and textualism amount to western fantasies that won't work on the ground in the nation's capital and on our highest Court, as his votes already reflect.


Shag from Brookline said...

Justice Gorsuch seems not to believe in the "spirit" of the Constitution as it has been amended over the years, relying more upon originalism's FIXATION when the 1787 Constitution was ratified. Justice Gorsuch's originalism seems to differ from the New Originalism as recently announced by Randy Barnett and his co-author. Regarding their "spirit" of the Constitution, at issue is the role of originalism's FIXATION theme as the Constitution has been amended over the years. The "spirit" of the Reconstruction Amendments in particular stands out, although ignored by SCOTUS until the start of the civil rights movement following Brown v. Bd. of Educ. (1954, Unanimous). Perhaps Justice Gorsuch is not into spirits of any sort.

Shag from Brookline said...

Is there any doubt that originalism continues to evolve?

Eric Segall said...


Bob Minor said...

Somehow, the style and types of arguments, as well as his inability to truly self-reflect on his ideology and faith in some god called "originalism" don't surprise me.

Joe said...

So you bit the bullet and actually reviewed the thing? Lose a bet?

Gorsuch would have been a painful choice even without the details of how he came to be in the seat he fills.

Anyway, I will repeat a long term position of mine. The Gorsuch side with disdain talks about how the living constitutionalist side (what one lawyer with a deep understanding of founding history on another blog said he would call "constitutionalism") makes shit up. I phrase it that way since it gives a full feel of their sentiment.

Being wrong is okay on some level (we all are wrong sometimes) but doing so with a chip on your shoulder in this fashion while expressing your opinion in a shoddy way is that much worse. "Both sides do it" on some level, but "my side" to me regularly does so with some more humility. Justice Breyer is upfront that he is making judgment calls. For this, they get called out for making shit up. If so, sorry you don't like judging.

Or, the law, for that matter. Anyway, Gorsuch is such a [deleted].

Joseph said...

I might use italics if I knew the coding.

There are many good questions to ask Originalists concerning their interpretations of whole areas of law as well as particular decisions. The general acceptance of a capacious view of the Free Speech Clause comes to mind. I don't think any such questions undermine the legitimacy of Originalism. The constant drumbeat against Originalism is that it is not fool-proof (ie actually black-and-white) and its advocates not infallible and so they're arrogant.

Two points I found glaringly unpersuasive:

1) Citing a superficial similarity between Gorsuch's descriptions and the passage from Dred Scott. You sidestep Gorsuch's argument that the "Constitution clearly gave Congress the power to make laws governing the Territories" and conflate Gorsuch's public meaning Originalism with the sort of original intent proferred by the Dred Court. An easy objection is that the Court was engaged in living constitutionalism while dressing it up as faithful adherence to the Constitution's words. I find it easy to believe Gorsuch would take issue with that passage.

2) Regarding Trinity Lutheran, you quote religious scholars from their Take Care article: "An originalist would inevitably see that the Free Exercise Clause, made applicable to the states by ratification of the 14th Amendment in 1868, should be viewed in light of the then widespread constitutional norm against direct aid to houses of worship." I don't think that it would be so inevitable a view, but in any event that doesn't necessarily dictate a result in Trinity Lutheran. Gorsuch, in his brief concurrence, didn't see fit to engage Sotomayor's argument but that doesn't indicate much. There are times I'd love to see a Justice respond to the arguments from the other side but we don't always get that for any number of reasons.

Shag from Brookline said...

Over at the NYTimes there is a review of The Enigma of Clarence Thomas By Corey Robin that's quite interesting.

Bugsmasher said...

Segall's review does a great injustice to Justice Gorsuch and legal academia. All he does is repeat the same old criticisms that (1) Justices are imperfect in applying their preferred theory of interpretation and (2) several past opinions -- like Dred Scott -- produced results we consider wrong today were wrong as a matter of interpretive theory. So what if a Justice applies a theory inconsistently? That shows only that the Justice, not necessarily the theory, is imperfect as all human beings are (except some legal pundits). The same is true about inconsistency of past opinions with modern preferences. No one is claiming that originalism-textualism is perfect, only better. That case has been well made by Gorsuch and others.

Bugsmasher said...

The problem is some people improperly use modern social opinion (their preference or expectation) as the standard to judge interpretive process or theory. But the proper test of any intereptive theory is consistency with premises, not with today's preferred outcome. The original constitution was not perfect -- as slavery and the Civil War and denial of women's vote showed. But the Founders included an amendment process to allow later generations to correct those errors or omissions. Tlhe proper corrective process is amendment, not lawmaking in the guise of interpretation by unelected judges.

Joe said...

Taney's Dred Scott opinion did not deny that Congress has power to regulate the territories in some fashion though argued the Territory Clause was limited to the territory existing at the time. Congress would still have power over territories as future states (I summarize Don Fehrenbacher's longer discussion here.)

Taney held, however, that Congress did not have the power to do so to deny the right to carry slaves into the territories. He used original understanding to try to justify this. I don't think he used a "living constitutionalism" approach. I think (as do many originalists)he selectively cited original understanding and also basically misstated it. Lincoln's Cooper Union speech provided an alternative view of the facts and argued factual error was basic problem. Lincoln also left open some change of constitutional understanding if clear error can be found. but, he would put a high test to finding the Founders wrong.

As to Trinity Lutheran, Prof. Segall has repeatedly challenged Gorsuch et. al. for not engaging with Sotomayor's arguments. Such people repeatedly provide originalist arguments so it would seem a proper challenge for such a basic area of law, including arguably in a way that leads to anti-federalist ends (local option in religious matters superceded). Gorsuch joined Roberts in core respect, making it that much more appropriate.

Joe said...

"The proper corrective process is amendment, not lawmaking in the guise of interpretation by unelected judges."

Judges are confirmed as part of a political process, nominated and confirmed by elected officials, which is an important aspect of the development of constitutional law.

The statement has a sort of truism nature to it though realistically judges hand down opinions that form a sort of "common law" that spell out the meaning of the Constitution. This is a sort of "lawmaking" and it is readily accepted as such by originalists too, I reckon, except to extent the word is used is a specialized way.

The amendment process is not necessary to decide that "equal protection" means such and such based on current understanding of the facts. This is part of the system put in place and Madison, Hamilton, Marshall et. al. was well aware of it. See, e.g., McCulloch v. Maryland. Amendments do at time make clear such and such is the case when there is reasonable debate. So, the First Amendment to some was not necessary, but it was ratified in part to make clear things.

Others such as the two terms for presidents were clear changes.

Shag from Brookline said...

Consider in the several opinions in Dred Scott the discussions on Lord Mansfield's 1772 common law decision in Somerset v. Stewart and its impact on American law. Even slave states recognized the impact of Somerset. Perhaps it was a goal of CJ Taney to obscure the common law precedents established by Somerset in America pre-Civil War. English common law was carried forward in certain instances with America's independence and its 1787 Constitution.

Shag from Brookline said...

CJ Taney, it is said, was looking ahead to New York's Lemon case, to get rid of Somerset. Alas, the Civil War intervened.

Joe said...

The breadth of Somerset was disputed but Dred Scott did raise more complicated issues since there was some positive law supporting slavery involved. See also, the Slave Grace case.