Akhil Reed Amar, a Yale Law School professor and the author of “The Constitution Today: Timeless Lessons for the Issues of Our Era,” argues that not all devotees of “originalism” in interpreting the Constitution and statutes are what are ordinarily called conservatives and that Judge Neil Gorsuch might be a liberal member of this group.[1]
Originalists, the professor says, “believe that faithful constitutional interpreters must build on the solid bedrock of the Constitution’s text, as that text was originally understood when drafted and ratified.” However, he adds, “not all conservatives are originalists, nor are all originalists conservative. Most jurists, most of the time, follow modern judicial precedents rather than pondering first principles of constitutional text and history. Practical considerations also factor into most jurists’ decision making. Originalists are no different in this regard, but they are more apt to dwell on first principles of text and original meaning and to discard precedents violating these first principles.”
A group of “liberal originalist lawyers, the Constitutional Accountability Center, where I serve on the board of directors, has been particularly effective in bringing liberal originalist scholarship to judicial attention. This month, Justice Anthony M. Kennedy and four liberal colleagues [in Pena-Rodriguez v. Colorado.] strengthened rules against racial animus in jury deliberations” in reliance . . . on the Center’s amicus brief and the historical scholarship it showcased” by another Yale Law School professor.
This case demonstrated that “originalists must honor not just the original understanding of words ratified in 1787-88, but also the letter and spirit of language added by later generations of amenders.”
Amar also noted “the extraordinary body of work of Steven G. Calabresi, who co-founded the conservative Federalist Society in the early 1980s and then clerked for Judge Bork and Justice Scalia. As “perhaps America’s pre-eminent conservative originalist,” [he] has shown that the 14th Amendment was plainly intended to apply the Bill of Rights to the states; that women’s equality was a central theme of that amendment, as originally understood; and that originalism in fact supports a right of same-sex marriage.”
Gorsuch, Amar asserts, “is a brainy and principled jurist” and his “embrace of originalism is honorable and admirable” and, if confirmed as seems likely, “may one day [be regarded] . . . as among the best of the century.”
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[1] Amar, What Gorsuch Has in Common with Liberals, N.Y. Times (Mar. 18, 2017).
“Might be” but probably not is my prediction. “Originalism” is a fancy word for a cipher. It is meaningless unless anchored in some definable principles. From the Wikipedia entry alone there are at least three different schools of “originalism”: “original intent”, “original meaning” and “framework originalism.” The whole article about “originalism” tells me that even those who ascribe to “originalism’ have not agreed what it means and who or what’ in and what or who’s out. It’s a term still looking for a definition and a home.
The New York Times piece by Professor Amar adds nothing to my understanding anyway. He puts Justices Thomas, Scalia and Kennedy and former Judge Bork in the same camp as Justice Hugo Black and for that matter much of the Warren Court which he says was deeply originalist at its best. Frankly, the decision of “Bush v. Gore” gives the lie to any of the intellectual pretensions of Thomas, Scalia or Kennedy. These jurists hae nothing in common with Justice Black whom I learned in law school was a “strict constructionist” with respect to the First Amendment. This was not because he called himself that but because of his principled refusal to compromise the language and meaning of the First Amendment. My reading of Justice Black’s other decisions does not show him to be as uncompromising on other interpretations of the Constitution. Until Professor Amar’s article, I’ve never heard Justice Black described as an “originalist.”
My impression is that Judge Gorsuch has a lot of friends in high places including people who call themselves liberal or progressive. I’ve seen articles by his former law partners and now by Professor Amar which amount more to character references. Mr. Gorsuch has not written any tomes on his philosophy, judicial, legal or otherwise. He’s authored a few judicial opinions in his ten years on the bench. Before that he was in the Bush Department of Justice where he took part in hammering out Bush “interpretation statements” and justifying mass surveillance of Americans without a warrant. Other than that, what he would do on the bench is unknown. Except for the fact very powerful and influential right wing forces want this man on the the Supreme Court. That’s enough for me to be against him.