Because the founders used “he” to refer to the president, does this mean you don’t believe that a woman can serve in that office?
Because the authors of the 14th Amendment didn’t think about women or gays when they drew up the equal rights protection, does that mean you don’t think it applies to women or gays?
Judge Gorsuch replied that such questions show a misunderstanding of what “originalism” means. That approach does not look for meaning in subjective interpretations of readers, whether of the time it was written or today. 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. But to interpret (or throw out) a law based on speculation about the personal beliefs of the authors–as opposed to what they said–is more like what liberal interpreters do when they interpret the laws according to their own personal beliefs. Thus, “originalism” refers to the original language, not historical origins.
That is, originalists believe that the meaning of language and thus the law is objective, not subjective. The 14th Amendment guarantees the equal protection of the laws to all Americans, so that would include categories of Americans that the authors didn’t 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. Do we interpret it according to what we want it to mean? That’s basically the approach of liberal theology. Or do we believe in what it says? [Read more…]