The Supreme Court confirmation process for Neil Gorsuch is currently underway. As an engaged citizen, I have listened with great interest to much of the Senate hearings. As a former civics teacher, I shudder to think what little understanding of judicial philosophy, the role of the Supreme Court and our history as a nation is brought to bear on these hearings. While we learn of Gorsuch’s many stellar attributes as a jurist and his likeable personality as a public figure, given his heterodox judicial philosophy, he may well be a wolf in sheep’s clothing.
Since his confirmation is all but assured, believe me, I hope I am wrong about Gorsuch. However, one does not need to be a scholar to be troubled by the judicial philosophy he espouses—that of “originalism.” It is a philosophy that has gained traction in the past three decades as a backlash to the successful use of constitutional law to advance civil and human rights in the early to mid-20th century. At which point conservative scholars got themselves funded and organized to promulgate the idea that ascertaining the “original intent” of the Founding Fathers was the best way to reign in the increasingly progressive trajectory of history. Any change from the “original intent” of the Constitution should only be made by an amendment.
That philosophy is contrary to long-established jurisprudence and certainly my education as a civics teacher in the 1980s. Most mainstream constitutional scholars taught that we are governed by a “living constitution” – a document intentionally written rather sparingly and mostly in generalities to be able to adapt to changing times. Even now the Supreme Court’s current webpage states: “. . . constitutional interpretation and application were made necessary by the very nature of the Constitution. The Founding Fathers had wisely worded that document in rather general terms leaving it open to future elaboration to meet changing conditions.”
Historically the role of the Supreme Court has been as the final arbiter in interpreting the Constitution when conflicting views remain intransigent. That ever-growing body of constitutional law has become part of this “living document” by which we are governed; still written most often by wise but fallible men—along with the Founding Fathers. A foundational governing document to be sure, but always a work-in-progress. Ever-changing through the amendment process and judicial review.
But today’s conservatives who espouse “original intent” seem to view the Founding Fathers as some kind of holy men—whose words and intent are immutable law. Excuse me, but these men did not think of themselves that way—and if any of them succumbed to that view, one of their ever-so-mortal peers would put them in their place. Today’s political conservatives are looking for “Truth” with a capital “T” and they mistakenly try to imbue the Constitution with a transcendent and absolute quality.
For the record, the Constitution was extremely controversial at its inception. It was a second attempt at a governing document for the newly formed United States after the first one failed—the Articles of Confederation. It was conceived in conflict and established through unseemly compromises; e.g. the continuation of slavery and women’s subjugation. It was a pragmatic document; circumscribed by its time--both innovative and restrained. But what has made it resilient has been its ability to adapt to the emerging complexity of contemporary society and respond to new generations of Americans by incorporating ever-evolving inclusive democratic ideals and governmental protections.
Present day jurists who espouse “originalism” misrepresent their philosophy as value-neutral—when in fact it is no more value-neutral than “living document” proponents. The Founding Fathers were mortal men shaped by their 18th century worldviews—not demi-gods of democracy or liberty. They encapsulated no singular “intent.” They were not of one mind. They compromised to come up with a workable document that ever-so-tenuously held the country together in those early days. Through the last two centuries, the Constitution has been stretched and flexed by the American experience to give shape and relative cohesion to the country we know today.
Consider, for example, how women today would be regarded by the “original intent” of the Constitution. Be given equal rights? Hardly. Nowhere in the Constitution are women expressly accorded such rights. While the 19th Amendment gives women the right to vote, it is only through historical jurisprudence—the living constitution--that women have any expectation of equal rights. Feminists and other progressives have lobbied for decades for an equal rights amendment to explicitly ensure those rights. Yet conservative “originalists” have insisted that such an amendment is unnecessary while any coherent application of their “original intent” philosophy would deny women equal standing. Are “originalists” hypocritical, inconsistent or perhaps just unabashed modern-day chauvinists?
Constitutional “originalists” cherry-pick judicial “truths” like religious fundamentalists cherry-pick biblical wisdom. Who knows how Gorsuch will come down on any particular controversial issue. Maybe he won’t be as bad as some fear; his cherry-picking may be actually—judicious. Or, maybe he will live up to all the expectations of the political right. But whatever happens, beware of any judicial arguments based on “originalism.” We seek jurists who are adept at meshing the highest ideals of the entire American experiment with real-life circumstances. Not those who employ pie-in-the-sky “truths” conjured out of a mythical past. We can’t begin to settle our differences if we don’t have an honest assessment of our history, our governing documents and a judicial philosophy that’s based in the real world.