Pascal-Emmanuel Gobry can barely contain himself over Neil Gorsuch, President Trump’s pick for the Supreme Court. After mooning over Gorsuch’s “blue eyes” and “outdoorsy Colorado lifestyle” (“he’s so dreamy,” writes Gobry,” adding “I jest…mostly”), M. Gobry gets down to serious business:
Gorsuch's philosophy of legal interpretation is known as "originalism" or "textualism." It's the philosophy that judges should interpret the law and the Constitution according to the exact meaning of the words of the text as it would have been understood at the time it was enacted.
Another way of looking at “originalism” is that it’s the philosophy that judges should ignore over two hundred years of prior judicial interpretation and legal precedent, not to mention social and cultural changes that have taken place, in order to discern and implement the views and attitudes of the constitution’s authors. This is not dissimilar, in principle, from certain approaches to reading the Bible, the main difference being that Christian and Jewish “originalists” believe they are dealing with the actual word of God, whereas constitutional “originalists” have to acknowledge that they are dealing with the words of a handful of eighteenth-century politicians.
Lest you think that “originalism” is a scheme by which conservatives attempt to put a brake on social and political change, M. Gobry disabuses you of that notion:
While the conservative movement promotes originalism in the judicial branch, it's important to understand that originalism is not a "conservative" philosophy in the way that left-leaning judges' belief in a "living Constitution" is a "progressive" philosophy. Conservatives don't promote originalism because it leads to conservative outcomes, but because it is the judicial philosophy most compatible with what we see as the best features of the American constitutional system.
That, of course, is entirely disingenuous: scratch an "originalist" and you will find a conservative. "Originalist" judges like the late Antonin Scalia are fond of claiming they are devoted only to the rule of law and uttery unconcerned about policy outcomes, and yet their originalism leads, time and again (no doubt by sheer coincidence), to outcomes that coincide with the desires of the Republican Party.
To continue: what, one may ask, are the “best features” of our system, and how does originalism comport with them? M. Gobry explains:
The Enlightenment thinkers who bequeathed us the Republican system of government — a system that has made the countries who adopted it the freest, most advanced, and most progressive in history — believed in a limited role for judges, because they believed that otherwise judges might become a kind of new monarchy (after all, judges aren't elected and sit for life). In the famous words of the French philosopher Montesquieu, typically a hero of progressives, judges should be "the mouth of the law."
As advocates of originalism freely admit, there is no perfect and foolproof method of interpretation, but originalism is the one that most respects the actual words of the Constitution and laws, which were written by the duly elected representatives of the people, who are the final owners of sovereignty in the American constitutional system. A world without orginalism is a world where unelected judges can decide social policy at a whim and do so despite having no constitutional warrant for it and having been elected for it by nobody. This concept is in contradiction with values central to our system of government, such as representative democracy and the rule of law.
To dispatch the low-hanging fruit first: even “originalist” judges like Neil Gorsuch and the late Antonin Scalia are “elected by nobody” and are just as capable as "left-leaning judges" of overturning “laws, which were written by the duly elected representatives of the people”. As much as conservatives would like us to believe otherwise, "originalist" is not the opposite of “activist”. Originalist judges do not defer to contemporary lawmakers but to the presumed opinions of the aforementioned worthies from the eighteenth century.
Were a duly elected 21st-century Congress, for instance, to pass a law requiring all Americans to purchase healthcare insurance, rest assured that an originalist judge, though unelected, would toss out such tyranny in a heartbeat; laws attempting to regulate the ownership of firearms would suffer a similar fate. “Originalist” judges have even found ways to intervene in a national election, ordering the counting of votes to stop lest the "legitimacy" of the purported winner be questioned.
The claim that the only alternative to "originalism" is the "whim" of unconstrained judges is nonsense. Judges are constrained by a variety of factors, including the text of the Constitution, two hundred years of precedent and interpretation, social and political context, arguments advanced by lawyers and judicial colleagues, etc. They are also influenced, if not constrained, by their own life experience, as a wise Latina once pointed out.
Jurisprudence does not take place in a vacuum, nor is there any way for modern judges to ascertain conclusively what James Madison would do about our contemporary contretemps. Supreme Court judges do not need to be "originalists". They need to be men and women sensitive both to our history and to our current social and political dilemmas; they need to be both aware of the past and engaged with the present. They do not need to be without opinions and preferences; they need only to be conscious of them and to do their utmost to put the law and sound legal reasoning ahead of them.