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?
Throughout the weeks leading up to Judge Neil Gorsuch’s Supreme Court confirmation hearings, the Left took aim at his “originalist” 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 “originalism” or “textualism” means. In the hearings, Democratic senators followed suit.
Sen. Amy Klobuchar, D-Minn., asked whether, given the Constitution’s use of the word “he” 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: “Do you agree with Justice Scalia’s 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?”
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.
“The point of originalism,” Gorsuch explained patiently to Feinstein, “is to strive to understand what the words on the page mean. Not import words that come from us, but apply what you, the people’s representative, the lawmakers, have done … I think that guarantee — equal protection of the laws guarantee in the 14th Amendment, that it took a civil war for this country to win — is maybe the most radical guarantee in all of the Constitution, and maybe in all of human history. It’s a fantastic thing, and that’s why it is chiseled in Vermont marble above the entrance to the Supreme Court of the United States.”
With this explanation, Gorsuch explained not just originalism, but also the very purpose and importance of written law.
Illustration by KAZ Vorpal, Flickr, Creative Commons License