During his confirmation hearing for Supreme Court justice, liberal senators interrogated Neil Gorsuch about his judicial philosophy of โoriginalism.โ
Because the founders used โheโ to refer to the president, does this mean you donโt believe that a woman can serve in that office?
Because the authors of the 14th Amendmentย didnโt think about women or gays when they drew up the equal rights protection, does that mean you donโt think it applies to women or gays?
Judge Gorsuch replied that suchย questions show a misunderstanding of what โoriginalismโ means. ย That approach does not look for meaning in subjective interpretations of readers, whether of the time it was written or today. ย Rather, it looks for meaning in what the law says.
To discern that, you have to research what the words meant to the lawmakers who passed the law; that is, their original intent. ย But to interpret (or throw out) aย law based on speculation about the personal beliefsย of the authorsโas opposed to what they saidโis more like what liberal interpreters do when they interpret the laws according to their own personal beliefs. ย Thus, โoriginalismโ refers to the original language,ย not historical origins.
That is, originalists believe that the meaning of language and thus the law is objective, not subjective. ย The 14th Amendment ย guarantees the equal protection of the laws to all Americans, so that wouldย include categories of Americans that the authors didnโt think of at the time.
The rule of law, notes an editorial on the subject (quoted and excerpted after the jump), depends on the law having an objective meaning.
This debate reminds me of different approaches to the Bible. ย Do we interpret it according to what we want it to mean? ย Thatโs basically the approach of liberal theology. ย Or do we believe in what it says?
From โOriginalismโ โ another word for the rule of law | Washington Examiner:
Throughout the weeks leading up to Judge Neil Gorsuchโs Supreme Court confirmation hearings, the Left took aim at his โoriginalistโ view of the law, the philosophy he candidly shares in common with the late Justice Antonin Scalia.
Liberal commentators have presented characteristically obtuse explanations of what โoriginalismโ or โtextualismโ means. In the hearings, Democratic senators followed suit.
Sen. Amy Klobuchar, D-Minn., asked whether, given the Constitutionโs use of the word โheโ to describe the president, an originalist can believe that a woman could become president. Sen. Dianne Feinstein, D-Calif., the ranking Democrat on the Judiciary Committee, grossly mischaracterized Scalia (who is no longer around to defend himself) in asking a question presumably written for her by a rabid staffer: โDo you agree with Justice Scaliaโs statements that originalism means that there is no protection for women or gays and lesbians under the equal-protection law because this was not the intent or the understanding of those who drafted the 14th Amendment in 1868?โ
It would, in fact, be the opposite of originalism to interpret the law according to hidden racist or sexist ideas or intentions supposedly in the minds of its drafters. Gorsuch explained this to Feinstein in his reply, one of his most illuminating statements in the entire confirmation process.
โThe point of originalism,โ Gorsuch explained patiently to Feinstein, โis to strive to understand what the words on the page mean. Not import words that come from us, but apply what you, the peopleโs representative, the lawmakers, have done โฆ I think that guarantee โ equal protection of the laws guarantee in the 14th Amendment, that it took a civil war for this country to win โ is maybe the most radical guarantee in all of the Constitution, and maybe in all of human history. Itโs a fantastic thing, and thatโs why it is chiseled in Vermont marble above the entrance to the Supreme Court of the United States.โ
With this explanation, Gorsuch explained not just originalism, but also the very purpose and importance of written law.
[Keep reading. . .]
ย
Illustration by KAZ Vorpal, Flickr, Creative Commons License