Supreme Court nominee Judge Neil Gorsuch 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.”
Gorsuch’s philosophy is akin to the “originalism” endorsed by Supreme Court Justices Antonin Scalia and Clarence Thomas. It pegs our future on the past.
On its surface, the original-understanding philosophy is very attractive. Under it, the judge is a neutral umpire who enforces values established in 1789 or 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 I’m not certain that most Americans would endorse this superficially attractive trope if they looked beneath the skin of its surface appeal.
It is not clear that original understanding is possible in any but the most obvious circumstances. More often than not, original understanding is in the eye of the beholder.
A perfect example of this phenomenon is found in Heller v. District of Columbia (2011), the case in which the Supreme Court held that the Second Amendment “right to bear arms” was an individual as opposed to a collective right. The court split 5 to 4 in so ruling. The majority opinion, authored by 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. I would add to this observation that history forged in the context of adversarial litigation is more often than not bad history. Supreme Court reports are replete with this or that justice’s semi-fictional version of history.
Another concern that might give many Americans pause is the backward-looking nature of original understanding, under which neither the present effects nor the future consequences play any role in a judge’s interpretation of the law.
An alternative to originalism would be a more inclusive approach that takes into account both the original understanding and the lessons we have learned over the course of the past 200 years, one that carefully considers the past, the present and the future. My hunch is that most Americans would be comfortable with that approach.
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. This appears to be Gorsuch’s view. But the sensible alternative to originalism is not free-range activism, but pragmatism, a perspective that can accommodate a wide range of political views.
A pragmatic judge would attend to the present and future consequences of a proposed constitutional interpretation. Those consequences will not necessarily control the judge’s ultimate conclusion, as other factors, including original understanding, text, precedent and respect for democratic principles must also be taken into account. And, of course, a conservative pragmatic judge may arrive at a different conclusion than would a liberal pragmatic judge. 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. The one we live in, not the one of powdered wigs and muskets.
To me, the ideal Supreme Court would be composed of justices who represent a broad spectrum of political views, but who live in the present and who understand that their constitutional interpretations have consequences that must be taken into account. They would also be justices who not only listen politely and write clearly, but who have the humility to accept their own fallibility and the practical limits of any singular rule of interpretation.
I assume that Gorsuch strongly believes in the mission of originalism, but that strong belief, which is really a form of religion, makes him a most unfortunate candidate for a position on the Supreme Court.
Allan Ides is a law professor at Loyola Law School, Los Angeles. He was a clerk to former U.S. Supreme Court Associate Justice Byron R. White. Ides can be contacted at firstname.lastname@example.org.