What does originalism mean to Judge Gorsuch? – The Commercial Appeal

Noah Feldman, Bloomberg View 5:03 a.m. CT March 22, 2017

Supreme Court nominee Neil Gorsuch is telling senators that he keeps "an open mind for the entire process" when he issues rulings. (March 21) AP

Judge Neil Gorsuch pauses as he speaks in the East Room of the White House in Washington, on Tuesday, Jan. 31, 2017, after President Donald Trump announced Gorsuch as his nominee for the Supreme Court.(Photo: Carolyn Kaster/AP)

Confirmation hearings for U.S. Supreme Court justices are an occasion for a national conversation about constitutional law and interpretation. Because Judge Neil Gorsuch is being billed as an originalist, his hearings this week are a great opportunity to ask him five pressing questions about constitutional thought.

Start with the most basic: Why should judges use originalism in the first place? Originalism holds that judges should interpret the Constitution based on the original meaning of the text, but the Constitution itself is silent about how it should be interpreted.

And the framers themselves weren't originalist. In one instance, James Madison, the lead architect of the whole document, years later as president signed a bill that re-established the Bank of the United States which he himself had deemed unconstitutional when it was proposed by Alexander Hamilton some 20 years before.

Madison's initial objection to the bank was that he and the other framers hadn't given Congress the authority to charter a bank. He was in a position to know what the framers' intent was, because he was one of them indeed the most important.

But he explained in 1815 that the acceptance of the bank over decades by all three branches of government with the "concurrence of the general will of the nation" had made it constitutional.

If Madison wasn't an originalist, why should judges be so today?

The next big originalism question is, how do you generalize 18th century meanings to modern conditions? A case in point is the right to bear arms.

The Second Amendment explains its purpose by saying that the right to bear arms must be preserved because a "well-regulated militia" is "necessary" to the security of a free state. It's pretty rare for an amendment to contain its own purpose, so you'd think that would be relevant to its original meaning.

Yet in his 5-4 opinion for the Supreme Court interpreting the Second Amendment to cover handguns, Justice Antonin Scalia ran roughshod over the explanatory part of the amendment. Purporting to use originalism, he said that the right to bear arms was an individual right not limited to militia service.

This leap of generalization brought Scalia to the conclusion that a right expressly designed for militia extended to block the District of Columbia from regulating handguns. What principle of originalism led him to the rule he chose? And would Gorsuch explain and defend it?

A third crucial question for originalism is what it has to say about stare decisis, the principle that the Supreme Court should follow its precedents. Most, and in fact almost all, of the court's greatest rights decisions aren't grounded in original intent, from Brown v. Board of Education (desegregation) to Roe v. Wade and Planned Parenthood v. Casey (abortion), Lawrence v. Texas (gay sex), and Obergefell v. Hodges (gay marriage.)

All these decisions are the law of the land. But a consistent originalist would have to overturn them all.

The fourth serious question about originalism relates to a topic on which Gorsuch has written as a judge, namely the administrative state. In his opinion attacking Chevron deference, the doctrine that holds courts should defer to agencies' interpretations of ambiguous laws, Gorsuch specifically pointed out that the mass of executive agencies created by presidents from Franklin Roosevelt to Richard Nixon sits uncomfortably in the three-branch constitutional structure laid out by the framers. He's right about this. The agencies form in effect a fourth branch of government.

How should an originalist relate to the administrative state? Gorsuch reasoned in his anti-Chevron opinion that the courts should be especially careful about deferring to agencies' statutory interpretation because the agencies are on such doubtful constitutional footing.

This leads to the final and in some sense most powerful question for the originalist: What's the alternative to a living constitution? Is it, as Justice Scalia would sometimes exasperatedly seem to acknowledge, a dead one?

When Justice Oliver Wendell Holmes introduced the metaphor of the living Constitution, he compared the document to an organism that had evolved over the generations.

The living, organic Constitution has changed drastically over the centuries. It has responded to wars, changed moral beliefs, new demographics (including immigration), new technologies, and American expansion, regionally and globally.

Originalism posits that the framer's vision, without evolutionary additions and subtractions, can fit these radically different circumstances. A

Noah Feldman is a Bloomberg View columnist. For more columns from Bloomberg View, visit http://www.bloomberg.com/view.

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What does originalism mean to Judge Gorsuch? - The Commercial Appeal