By Professor Allan Ides
This op-ed originally appeared in the Los Angeles Daily Journal.
Judge Neil Gorsuch, President Donald J. Trump’s nominee to the U.S. Supreme Court, has described his method of constitutional interpretation as one in which he tries “to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.” As such, Gorsuch’s constitutional philosophy is akin to the originalism endorsed by Justices Antonin Scalia and Clarence Thomas. It pegs our future on the past and it draws a bright line between those judges who adhere to the law — originalists — and those who impose their will on it — presumably everyone else.
On its surface, original understanding may seem to offer an attractive and principled approach to judicial interpretation of the Constitution. Under that approach, the judge operates as a neutral umpire who enforces the values established in 1789 or those found in subsequent constitutional amendments. It offers the hope of constitutional stability and leaves to democracy the responsibility of adjusting the Constitution to modern realities. But this vision is belied by the reality of how judges and justices actually interpret the law and resolve disputes. It is also premised on a highly unrealistic impression of how the American democracy works.
Virtually all judges are originalists when it comes to an unambiguous constitutional text. No sensible judge would struggle with the meaning of Article II’s requirement that limits the presidential office to a person who has “attained to the age of 35 years.” But most of the contested provisions of the Constitution are stated in open-textured, sweeping terms. Some obvious examples include “the free exercise” of religion, “the freedom of speech, or of the press,” and the guarantees of “due process.” Those phrases may sound relatively definite, but they aren’t. Even originalists disagree among themselves over their respective meanings. Other open-textured phrases define the powers of Congress, the presidency, and the judiciary; and still others limit the powers of the states with broadly worded terms such as “privileges or immunities” and “equal protection of the laws.” The question is whether originalism can provide a sustainable and sensible path to the correct understanding of such contestable provisions. I have my doubts.
The key to originalism is a presumed ability to enter the collective mind of the framing generation and to distill from the information gathered a definitive statement of original understanding. But even a casual glance at the history of the founding era reveals a community that was every bit as confused, contentious and inconsistent as our own. Both before and immediately after the adoption of the Constitution, the meaning of the constitutional text was vigorously disputed. A considerable number of Federalists thought that the First Amendment posed no obstacle to the punishment of those who ridiculed the government; Jeffersonians thought otherwise. The Supreme Court ultimately validated the Jeffersonian view (New York Times v. Sullivan (1963)), but despite that belated validation, it is abundantly clear that the founding generation had no shared understanding of the First Amendment. Nor did it have a shared understanding of the scope of federal power or of the range of states’ rights. Essentially, everything was up for grabs. The “correct” constitutional interpretation was then as now as much about political power as it was about the inherent truth of any particular proposition of law.
There is another problem with originalism. Any interpretation of the available founding-era historical material must be distilled through our biases, our experiences, and our dreams, and this is especially problematical when the historical material is being used as a weapon of advocacy. A perfect example of this phenomenon is found in Heller v. District of Columbia (2011), the case in which the Supreme Court held, 5-to-4, that the Second Amendment “right to bear arms” was an individual as opposed to a collective right. The majority opinion, authored by Justice Scalia, took an original-understanding approach. But so did Justice John Paul Stevens in dissent. Essentially, each opinion offered different interpretations of the same history and text. Yet the opinions arrived at opposite conclusions, with each justice following the path most compatible with his policy preferences. What Heller shows is that original understanding, rather than being a definitive guide, is often nothing more than a form of argument that is more or less persuasive depending on the reader’s point of view.
The Supreme Court reports are replete with this or that justice’s adversarial version of history — a history that almost always seems to coincide with the justice’s preferred outcome. Justice Scalia was particularly adept at shaping the historical record to achieve a result in conformity with his views. His opinion is Printz v. United States (1997) provides a striking example. The question there was whether Congress could require a local government official to administer a provision of federal law. In arriving at a negative answer, Scalia glossed over the history that ran strongly counter to his holding, and offered a sweeping interpretation of the relatively miniscule history that supported it. It’s not that Scalia arrived at a wrong result — we can argue about that on policy grounds; it’s that his policy-based result, which purported to be premised on originalism, was nothing of the sort. Nor is history-as-argument limited to the conservative point of view. Justice Hugo Black’s “history” of the establishment clause in Engel v. Vitale (1962) — the school prayer case — was every bit as instrumental as that employed by Justice Scalia in Printz.
The most telling proof that originalism is merely a form of argument is the ease with which the originalist approach disappears when a professed originalist seeks a non-originalist result. For example, in Employment Division v. Smith (1990), Justice Scalia’s opinion for the court adopted an interpretation of the free exercise clause that limited the scope of that clause to governmental action that regulates conduct because of its religious nature. Thus, a law that was facially neutral from the perspective of religion, but that swept a religious practice within its scope, was not subject to a free-exercise challenge. Justice Scalia’s opinion, which significantly altered well-established doctrine, made no inquiry into the original understanding of the free exercise clause. Instead, it was based on his conclusion that “leaving accommodation to the political process” is an “unavoidable consequence of democratic government [and] must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.” Scalia may have been right as a matter of social policy; but his non-originalist opinion suggests that originalism for him was not an overarching or universal principle of constitutional interpretation.
But even if original understanding offered an objectively verifiable and principled approach to the interpretation of an ambiguous constitutional text, it is far from clear why a justice should ignore the consequences of originalism applied. It is one thing to be informed by the original understanding, but quite another to be absolutely bound by it. No doubt some of the framers were brilliant men and some of their views are entitled to great respect. We certainly can learn from them and their generation, and we ought to be informed by what they thought and did. They were, however, an exceedingly narrow group of men, one that excluded the majority of the people then living in what was to become the United States. They were also far from perfect, their validation of slavery being one obvious example. Most importantly, the world they lived in bears little resemblance to the world of today, and they had no way to imagine this future world and all its complexities. What they would have done and would have thought had they foreseen our world is unknowable.
There is an additional problem with automatic originalism. It turns a judge into a type of cypher. Of course, we don’t want judges who simply impose their will on the law, but do we truly want judges who are oblivious to the consequences of their decisions? The exclusively backward-looking principle of originalism endorsed by those like Judge Gorsuch absolves judges of their responsibility to seek justice in the real world of today. It presumes the Constitution’s meaning to be a static “is” that can be discovered and applied as readily as a rubber stamp. But judicial responsibility goes beyond simply discovering what the law “is”, for it also entails considering what the law ought to be through a careful examination of the facts and the attendant consequences of any decision. There is no doubt that this is what the justices of the Supreme Court do on a regular basis, conservatives, moderates, and liberals alike — including the avowed originalists. The only question is whether they do it well. For me, Judge Gorsuch’s approach evokes a discomfiting image of Pilate washing his hands of responsibility. We should expect more from a justice of the Supreme Court.
Originalism is usually endorsed as the alternative to a regime under which judges are free to rewrite the law in service to their personal vision of morality or social policy. But the sensible and politically neutral alternative to originalism is not free-range activism. Rather, it is an eclectic pragmatism that takes into account a range of factors, including text, original understanding, consequences, social policy, and justice. Unlike an originalist judge, a pragmatic judge attends to the present and future consequences of a proposed constitutional interpretation. Those consequences will not necessarily control his or her ultimate conclusion, for other factors, such as those listed above, must also be taken into account. Of course, a conservative pragmatic judge may arrive at a conclusion that differs from that of a liberal one. But, at the very least, both pragmatic judges will be focused on the law as it operates in the real world of the 21st century. Such an approach places judges at the heart of democracy, not above it. It creates a sensible dialogue among the courts, the political branches, and the people for whom those institutions exist.
My hunch is that many if not most Americans embrace some version of pragmatism, and that they expect all government officials, judges included, to display that trait. I also sense that this same group of Americans would be troubled by a justice who can only look to the past and who, as a matter of principle, will ignore the immediate and future consequences of his or her decisions. I assume that Judge Gorsuch strongly believes in the mission of originalism, but that firm belief makes him a most unfortunate candidate for a position on the Supreme Court. This isn’t just about the survivability of Roe v. Wade (1973). More fundamentally, it’s also about the future of our living Constitution, one that was “intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” McCulloch v. Maryland (1819). Supreme Court justices must not be blind to the realities of today based on their embrace of a superficially appealing theory of originalism. I hope the debate over Judge Gorsuch’s appointment focuses on this specific concern rather than on his likeability, his resumé, or the self-fulfilling prophecy that he’s the best we can get from the current administration.