Neil Gorsuch is going to be the newest Associate Justice of the Supreme Court of the United States. His confirmation hearings have not yet begun, but there is no doubt he will be the replacement for the late Antonin Scalia. And he would be a replacement in the jurisprudential sense also – he, like Justice Scalia, is a strict adherent to the legal philosophy of originalism. Originalism is where law should be interpreted strictly according to the text, the intent of the author, or what reasonable people at the time of its enactment would have expected it to have done.
Originalism isn’t completely useless. I can see the benefits, absolutely. Judicial review would be much more expedient, and legal challenges much less frequent, if judges were able to call upon the author of a piece of legal text and have them explain what the intent of the law was, and what the parameters of the legislation were. Jesuitical debates over the meaning of specific words, or sequences of words, would be rendered nought – the author, and reasonable people, intend the law to do X, your arguments are fruitless. So originalism is not a completely irrelevant or outdated jurisprudence.
But it does have its failings, and it does have its limits. In a country like the United States where, in the 228 years since it’s original ratification, there have only been 27 Amendments to the Constitution, originalism cannot be your only tool when applying judicial interpretations and rulings of law. When you consider that of those 27 Amendments, 10 occurred almost simultaneously, it still leaves 228 years with a text that has been changed only 17 times. It is a very static document and, as Justice Scalia described it, a “dead” document. Originalism, applying a 228 year old document to the laws and problems of today, cannot be the go-to legal principle.
The United States has changed since 1789. Its social and economic makeup differs vastly from that which the Founding Fathers has written their body of laws for. The relationship between the States themselves too has changed – the United States has become a much bigger beast that the 13 original colonies, with far more diverse and complicated internal relationships between States. A dead 228-year-old document, one that has so rarely been amended, cannot be expected to reflect its peoples, or its peoples needs, with the same level of equity, or even accuracy from a non-legal standpoint.
When the Constitution and the original amendments, the Bill of Rights, were originally written, the United States was a fledgling nation. 13 individual states, coming together for security and economic purposes. There was a much smaller population – it was a solely coastal nation. There was slavery. Women were subjugated and treated as second-class citizens. There was no protection for sexual or ethnic minorities. There was no foresight in terms of societal or economic advancement, despite having some of the foremost thinkers of the day involved, like Benjamin Franklin. 228 years later, the United States is the dominant force in the world, technology has exploded, and the world looks nothing like it did in 1789. Minorities not existing in 1789, or not considered, are present coast-to-coast. A dead document cannot protect them.
“[J]udges should … strive … to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be…” – Judge Neil Gorsuch
But that is not the only setback with originalism. When interpreting laws strictly according to the views of those who wrote it, it is their viewpoint that is being forced on society, regardless of the morality of that viewpoint. Additionally, in a democratic society, the adherence to a single, over-arching ideology is an antithesis. It can be argued that an apotheosis of the Founding Fathers has occurred, with originalists conferring on them an almost infallibility in their writings and teachings. In the 21st Century, applying the views, thoughts, and moral codes of 18th Century politicians is, simply, inequitable and unjust.
Originalism has another problem, though this is not inherent to this particular jurisprudence, and could be more likely an evolution of society. Its proponents tell us that it allows them to be dispassionate; it limits their bias as, in its application, their own feelings on a particular matter do not come into it – it is what the authors or people at the time would have felt. But rulings in recent years show this is patently untrue. In his lifetime, Scalia turned his back on originalism in rulings that were political sensitive or that were contrary to his own beliefs.
Taking the 2nd Amendment as an example, the right to keep and bear arms was established as there was no standing army of the United States at the time of its passage. Militias were required to come to the defence of the nation, and people (read: men) needed to have weapons since no one would provide them with one otherwise. Interestingly, though, throughout his time on the bench Scalia found within this Amendment numerous extensions to the right, repeatedly casting aside as unconstitutional laws that would limit the number and/or type of weapons that Americans could have. He expected us to believe that the Founding Fathers intended the mentally ill or criminally suspect to be able to own arms, and when they said arms, the Founding Fathers meant automatic machine-guns or very powerful high-calibre rifles.
Another example is the Equal Protection Amendment. Subsequent rulings by the Supreme Court have found black, gay, and female rights to be covered by this passage, but originalists would not deem it so. The EPA was adopted at a time when the authors, and “reasonable” people, would have seen segregation of African Americans as falling under that Amendment (as opposed to falling foul of it, as it was later determined). The authors and “reasonable” people at the time would have never dreamt it would have contained a right to same-sex marriage. And it was adopted at a time when women didn’t even have the right to vote – why on earth would it protect any more rights for them. If originalists had their way, these minorities would continue to be unprotected by their own Constitution. Looking back, and not forward, ensures the only people protected by the US Constitution are rich, white, natural-born men.
Originalists are quick to abandon their jurisprudence when it suits them politically, despite what they may say. When this happens they explain they’re being “pragmatic”, but this pragmatism suspiciously disappears in other cases where, any reasonable person alive today, would imagine it would apply.
As I said, I think originalism has its uses. And I think if there were more frequent revisions of the US Constitution – and, as an aside, if it was actually easier to amend the US Constitution – it would definitely be an aide to judicial jurisprudence. But the US Constitution does not move with the times. It doesn’t get edited, and so it is up to the Justices of the US Supreme Court to ensure the people – all the people – are protected. Originalism just does not have a place here.