The Original Con

It looks like Neil Gorsuch is going to sail through the confirmation process with little difficulty, despite Al Franken’s best efforts.  This is at least partly because no one seems to know quite what to say in response to claims that he is an “originalist.”  That is, he supposedly will interpret the Constitution in accordance with the meaning of the text, rather than to accommodate his (or society’s) political/moral convictions.  

     On the face of it, this seems like an unassailable approach; I have argued elsewhere that it is the correct approach to Constitutional (and statutory) interpretation.  What else, after all, really could ground an interpretation?  If it is not the meaning of the Constitution that is supposed to guide judicial decisions, what is?  If it is the convictions of judges, or the winds of politics, or some vague notion about the Constitution being a “living” document, then our law is likely to lack all consistency and stability, because all these things are ephemeral and constantly in flux.  But consistency and stability rank high among the virtues of a legal system that a Constitution—a written document with a determinate meaning—is supposed to ensure.  

     But often originalism is just a con to avoid acknowledging the clear meaning of the Constitution.  This works by moving subtly from the claim that it is the meaning of the text that we must discern to the claim that this meaning is revealed by the practices of the founders.  Thus, what was permitted then must be permitted now.  What was prohibited then may be prohibited now.  And, what is perhaps most important in contemporary political culture, what was not protected then cannot be Constitutionally protected now.  

     So, for example, since capital punishment was common at the time of the founding, it cannot be unconstitutional now.  Since gay marriage was not recognized then, it cannot be a requirement of the Constitution that the law recognize it now.  Since the Constitution does not explicitly mention privacy, it cannot be the basis of other rights, such as the right to abortion or birth control, or the right to engage in homosexual practices.  And so on.

     This is a thoroughly wrong-headed way of understanding the meaning of the Constitution.  There are many reasons why this is so; here are three that I think are particularly important.

     First, this is a really silly way to think about the meaning of a constitution, whether ours of that of another nation.  Most constitutions, and certainly that of the United States, are not written to codify the way things are; they are written to articulate a moral vision of a society and to design a government that can realize that vision.  This is the meaning of Ben Franklin’s characterization of the founders’ work as “A republic, if you can keep it.”  A republic is a form of government grounded on certain values, and the realization of this ideal is a difficult and ongoing effort.  

     Second, this way of thinking has implications that might prove troubling to the very people who praise it.  What, we might ask, do the practices of the founders’ era tell us about the meaning of the 2nd Amendment?  Militia calls represented something very like registration of gun ownership.  Laws that prohibited carrying concealed weapons or carrying weapons in public places were common.  And it was not until the 1970s that anyone thought to question the constitutionality of this.  (I discuss this in more detail here.)  I doubt that there are very many self-styled “originalists” who would favor the return of such laws.

     Third, this approach is not faithful to the text of the Constitution; it is not even useful for determining the meaning of much of the Constitution.  Much of the Constitution is written in very abstract language, invoking concepts—freedom of speech, religion, and association, equality, due process—that are thoroughly contestable.  The people of the founders’ era did not agree on their meaning, and the practices of the various state and local governments were not consistent regarding many matters regulated by the Constitution.  The only way that we can discern the meaning of these concepts, and the Constitutional clauses that invoke them, is to engage in moral discourse ourselves.  We must inquire what constitutes freedom, equality, due process, and so forth.

     It is this feature of the Constitution that has enabled the United States to make whatever moral progress it has made.  A constitution written by and mostly for white Christian men invoked moral concepts that clearly apply to other people as well.  The inevitable political pressure by these other people has been a crucial driver of moral progress.  One unrecognized group after another—women, blacks, homosexuals, to name just a few—have stepped forward to demand the legal protections necessary to make the Constitution’s promises a reality for them.  And to the extent that these demands have been met, it is not because we have ignored or abandoned the Constitution.  It is because we have come to understand that the Constitution requires it.

     There are plenty more groups waiting in the wings for their turn.  It is only the recognition that the Constitution is a moral document, one that requires moral discourse amongst the citizenry, that will give our political institutions flexibility to navigate this future.

     I have not done enough research to say with certainty that Gorsuch is one of these narrow and crabbed originalists who believes that the Constitution froze things in time.  But what I have read, and what I have heard during his confirmation hearings suggests that he is.  And if he is, he is not going to be much use in crafting a political culture that can accommodate the diversity of this country.