The confirmation hearings of self-identified originalist Judge Neil Gorsuch, have once again brought to the forefront the constitutional interpretation theory of originalism. Today, law professor and blogger Lawrence Solum testified at the Gorsuch hearings on originalism. His testimony refuted what he considers to be four myths about originalism; namely that 1) originalists try to channel James Madison; 2) originalists cannot apply the constitution to new circumstances; 3) originalism would require that Brown v. Board be overruled; and 4) originalism is inconsistent with precedent. Next, Solum shifted to whether originalism is consistent with the modern legal system and the standard arguments for originalism. He also responded to some objections to the theory.
What is originalism? In a nutshell, originalism is the principle that the original intent of the framers of the Constitution should be adhered to by judges interpreting it. Further, originalists argue, if the words in the Constitution are at all unclear, then judges must consult historical sources to determine their meaning at the time of ratification.
In recent years, originalism has been associated with Justice Clarence Thomas and deceased Justice Antonin Scalia. Justice Scalia once wrote that:
You cannot adopt a theory that the Constitution is evolving and the Supreme Court will tell you what it means from age to age. You cannot do that without causing the Supreme Court to become a very political institution.
Scalia later wrote:
If judges are not bound by words and history, they will inevitably exceed the limits of their judicial authority and, like ‘activists’ or ‘super-legislators,’ make the Constitution say whatever they want.”
In this week’s hearings, Judge Gorsuch defended his originalist judicial philosophy, assuring skeptics that “no one is looking to return us to the horse-and-buggy days.”
The counterarguments made by Living Constitution proponents, mostly liberals, are that while we should care about these things, we can take the original character of the Constitution seriously without treating it as conclusive. For instance, Justice Stephen Breyer’s method of constitutional interpretation, argues that the founders used broad terms precisely so that the Constitution would be adaptable over time:
The main point about the Constitution is it was designed to set up a set of institutions where individual citizens would participate in their government. That was called democracy. And the rest, though very important, was specifying what kind of democracy it would be.
The upshot of Breyer’s school of thought is not that constitutional interpretation should disregard the framers’ intentions but that original intent and meaning matter but are not enough to determine what will serve the purpose of a particular case.
CNN reports that three Democrats – Senate Minority Leader Chuck Schemer, Sen. Bob Casey, and Sen. Bernie Sanders announced they will vote no on Judge Gorsuch’s nomination. If, however, Democrats had any hope of raising doubts about Judge Gorsuch among Republicans, these hearings were not a victory for them. While Gorsuch will need 60 votes to be confirmed in a chamber that only 52 GOP members, Republicans have warned that they would use the “nuclear option” which changes the filibuster rules to require only 51 votes if they’re pushed.