Gorsuch's Adherence to Originalism Should Keep Him From SCOTUS OPINION: Originalism fails to adapt to changing times and makes promises it cannot keep. David Rudenstine, The National Law Journal March 13, 2017 | 30 Comments share share on linkedin Facebook share on twitter share on google+ Share With Email Send Thank you for sharing! Your article was successfully shared with the contacts you provided. reprints OPINION: Originalism fails to adapt to changing times and makes promises it cannot keep. This premium content is reserved for National Law Journal subscribers. Continue reading by getting started with a subscription. Subscribe Now for Unlimited Access Already a subscriber? Log in now VIEW COMMENTS ( 30 ) ADD COMMENT What's being said Sign In Terms & Conditions SoCalMichael Mar 20, 2017 You overlook the fact that there is a mechanism in the constitution to keep it up to date. Its called the "amendment process". Best thing about it is it allows THE PEOPLE to vote on those changes in a reasoned and orderly way. The constitution should NOT evolve based on the whims of unelected jurists and pundits. You seem to have missed the point of the last election cycle in the US and Europe. No need to panic though... the pendulum will be swinging this way for the next 2 cycles so you should have a chance to catch up. rosemariesibal Mar 20, 2017 To all traders out there, if you have not found the perfect system for you to gain success in your trades I encourage you to check out and google Superior Trading System. Simple yet very effective method in trading. You won’t regret it. James Toscas Mar 19, 2017 You twist what is ostensibly an article about Gorsuch into an argument about originalism, which you oppose because "these three groups (writers, ratifiers, public) might have had different understandings of the Constitution." It is these three perspectives that an originalist judge would likely consider in making a decision. Surely this is a simpler and more reliable process than considering complex contemporary socio-economic factors and populist trends. Considering these three viewpoints provides a context to the Constitution that compensates for its failing to meet your impossible demand that it be exhaustive (e.g it doesn‘t include the right to have children). Originalism does not fail just because it would not deliver the result that you would prefer in strange and extreme circumstances ("...if a state made it a felony for a person to be the biological parent of more than one child..."). Not every human issue is the business of the federal government, and any state that passed such an unreasonable law would soon find itself depopulated-- not because of the law, but due to its citizens leaving-- without the help of SCOTUS. Terrye Mar 19, 2017 Originalist are who WE WANT ON THE COURT! Our form of government was brilliantly crafted by our Founders. We experience demise when we deviated from their wisdom! NLJ is on the WRONG SIDE OF THIS ISSUE! Nathan Mar 19, 2017 Apparently being the only commenter thusfar who hasn‘t ultimately hyper-criticized the author beyond the article, I would have recommended examples of actual fallacious originalism-framed judicial decisions, if there are any, beginning most notably with the late great SCOTUS Justice Scalia. Nathan Mar 19, 2017 Apparently being the only commenter thusfar who hasn‘t ultimately hyper-criticized the author beyond the article, I would have recommended examples of actual fallacious originalism-framed judicial decisions, if there are any, beginning most notably with the late great SCOTUS Justice Scalia. Duane 44 Mar 19, 2017 NLJ is going all in with the so-called liberal progressives who are neither. THEY want to control how YOU speak, think, and act; i.e., how YOU live. But those rules are not for THEM. THEY are ‘do as I say, not as I do, limousine liberal regressives‘. Kathleen 46 Mar 19, 2017 What‘s the deal with the "& Kathleen 46 Mar 19, 2017 I‘d gladly prefer the "interpretation" of our founders over the flighty opinions of a few folks with an agenda that promotes no freedoms (or protections of freedom). The amendments (including the first ten, folks!) have kept the spirit of reasonable change without strangling the essence of the idea. We‘ve reasonably modified "free speech" to avoid shouted obscenities from our daily life. I‘m all for "modifying" Islamic (and all other religions!) from "Honor Killings". There are dozens of examples where compliance with the original written word can be clarified to include rational changes. Mr. Gorsuch can handle it better than some loony liberal law professor. Tony Conte Mar 19, 2017 With all due respect, this is nonsense! The alternative to originalism is to allow Supreme Court Justices to write their personal ideological preferences into fundamental law Martin Michaels Mar 19, 2017 Only a Liberal would make such an asinine premise. You liberals say that the Constitution is a living, ‘growing" document. The cinstititution is the FOUNDATION of our country. As with a building‘s foundation, the Constitution is the base upon which laws are built. If one tries to change the foundation of a building already erected, he will inevitably break the building apart. This is the reason, the framers made it so very difficult to change the Constitution. If the Constitution is meant to be as pliable as Liberals believe, why write it down at all? Most buildings are made of solid materials, concrete, heavy masonry, usually reinforced. Erect a building on something pliable like sand, it will fall down. Liberals are (some, well-meaning) morons because they don‘t understand basic facts. Pete0097 Mar 17, 2017 Your argument actually supports Gorsuch. You feel that judges don‘t need to look to history to make their judgments. In fact, those that fail to learn history are doomed to repeat it. Just because they didn‘t atomic weapons back in the 1800‘s doesn‘t mean that they wouldn‘t understand the use of such a doomsday weapon. The use of dynamite during the revolution would have been almost a doomsday weapon, in fact the British navy was considered a doomsday weapon. The constitution was written to protect the people from the government. It is to help the people that don‘t have the resources to fight the government. firstname.lastname@example.org Mar 15, 2017 The constitution was written to LIMIT Federal Government, and insure the sovereignty of the people, it was not written for sovereign Government..sheeees. email@example.com Mar 15, 2017 I am amazed that a law professor does not understand the 10th Amendment, and why it was written..(it‘s where the un-enumerated lie),..this article shows why some Lawyers have never grasped Federalism as written into the Constitution of a Republic. Not a feral Democracy. as they wish.....amazing!! M. Walker Mar 14, 2017 Words do having meaning, but it often lies in the mind of the user. In following Originalism, do we let go of stare decisis and all of the Constitutional interpretations in cases since it was written? Or do we build upon those cases with ever clearer reasoning that reflects the "values" of the justice? The Constitution limited government‘s power and reserved unenumerated rights to the people, yet even the most "originalist" of justices and judges see their way clear to uphold statutes that offend some religions, uphold the beliefs of others, and impose restrictions on the freedoms of certain citizens. In the original Constitution, the differences in treatment of citizens depended upon race, gender and wealth. Little has changed. Paul Blume Mar 14, 2017 The author‘s analysis of "originalism" analyzes a concept which is foreign to any constitutional scholar, except to those who propose and impose the "living Constitution" idea, one which has created such corruption of constitutional jurisprudence (e.g., "Establishment Clause" jurisprudence). By his lights, originalists believe that the Constitution must not be adapted to changing times, which is ludicrous. His 4th Amendment example is not legitimate, any more than his parenting example. What originalists oppose are those times when courts lapse into interpreting "emanations from penumbras" that liberal courts are so fond of. In the end, the author‘s comments show why it is absolutely necessary that those who oppose originalism no longer be on the courts‘ benches. Their flights of fancy, along with their outcome-directed decisions, should disqualify liberals from the courts, and especially the U.S. Supreme Court. Originalists read and understand the Constitution. Liberals just make up their own constitution as they go along. D. A. Dyer Mar 13, 2017 I‘m not an attorney. I‘m just a lay person who is interested in and seeks to understand the law. Call me naive but my understanding of the Constitution is that it is like the rule book in a sport. It is written by the people who play the sport (citizens and their representatives). The rules can be changed by agreement of those who play the sport. The referees and umpires (judges) are charged with enforcing the rules, as written, not deciding which rules to apply, ignore, or change according to their whims. Kerem Mar 13, 2017 The author of this piece is stunningly ignorant about the philosophical basis of our founding. I am stunned someone so ill-educated and un-eloquent can submit such gibberish and gets it published! Originalism is always valid because the founding principles of this nation are timeless. If he had studied and comprehended philosophy, the author would understand his folly in writing such nonsense. I am stunned there are attorneys who are so ill-equipped to be attorneys, but perhaps I am even more stunned that such an opinion piece would be published here. Ray Mar 13, 2017 Is this Journal Peer reviewed or can anyone just write an article? This article is so flawed that someone should check if the author actually attended a school that taught law!!!! Damon Hung Mar 13, 2017 When there arise weighty developments that compel us to revise the Constitution, we do so by changing the words of the Constitution through the democratic process, not by changing the interpretation of the Constitution through the judicial process. Originalism makes none of the promises that Mr. Rudenstine claims. It promises only to be less nonsensical than the alternative, which is that something so important as the fundamental rights cited by Mr. Rudenstine should not actually be enshrined in the Constitutive document of the republic, but only in its interpretation. As to the other commenters: let‘s not make this a partisan issue. Originalism is abused by the right as much as judicial review is abused by the left. From the perspective of this independent citizen, both sides are hiding behind a judicial philosophy to avoid doing the hard work of just amending the document when important changes need to be made. Russ LaPeer Mar 13, 2017 Professor Rudenstine mistates the position of originalism. He has omitted the basic question, to hasten past it. The position of originalism is to determine whether a question is truly a federal "constitutional" one, the meaning of the language used at the time of "origin" of the Constitution controls, not what some number of jurists might think. If from the original meaning the provision of the Constitution has reasonable application, it is a federal, constitutional one. If not, it is reserved to the States (and the people). That there are competing approaches to using originalism is far less "flawed" or incomplete or uncertain than the amoebic creation of meanings, rights, and constitutional circumstances of jurists who would like to interpose their own social/political/economic/international predilections for the foundational source of law for the US republic. That "living organism" prattle is worse than nonsense: it is pernicious and highly dangerous to liberties. Tim Tucker Mar 13, 2017 The author of this piece is re-framing the argument to support his own straw-man postulations, which have no basis in "actualism" ( hey..if we are inventing descriptors to avoid truth...actualism is MINE!). Clearly the author shows his very left leaning bias and discontent with Goresuch, who is more aptly described as a Constitutional Conservationalist. ( NOT a Conservative). The author - in quoting Marshall, as THE authority shows his bias for a "living/breathing document" law theology. Which is fine should you want to vacillate on "what the meaning of IS...is" - to quote W.J. Clinton. Many of - perhaps MOST of us as Americans are tired of the desires of the Left to continually change the rules of civilization, and with it civility - by crafting constitutional contortionists as their philosophy, on a "self-guided" journey for America as a whole. This is another old story of the blind leading the blind. As a true student of history, and one who reads much of the Originators of this country....the author‘s thinking on Goresuch - is that the author would prefer to continue build law principle on silly-putty as opposed to stone. At least that way...he can twist, pull, distort and pervert the intent and solid principle so plainly spelled out in their nation‘s most sacred document. Again his straw-man argument of number of children has no precedent nor parallel principle of any pragmatic historical use. Which reveals a great deal of himself. Mr. Rude(edestine) has provided us with an example that one may be highly educated - and still not understand smart or common sense as the real tools of all GOOD law. Douglas Ferraez Mar 13, 2017 Basically this authors view means unelected judges get to make any laws they wish and so destroy our constitutional government. F. Hayek Mar 13, 2017 How does a totalitarian commie clown like this get tenure, and at what expense to his students and society? exnukem Mar 13, 2017 In other words you are saying that law, or language, has no meaning. Would you oppose a judgeship for a lawyer who would not convict someone of murder rape because he disagreed with the definitions of those laws? I think not. Yet for you the Constitution, The Supreme Law of the Land, is to be treated in this caviler manner. In your opinion, it would be just fine if the Congress would pass a law limiting births to one child, that the Constitution has no prohibition that would prevent this. Like most lawyers and politicians you are wrong! The Tenth Amendment is your prohibition. The is unless you have taken the "Due and Proper" clause and stretched it until it no longer has any meaning in the English language. Sir, if you want the Constitution to reflect your values, then do not look to judges to change it, for modern values are always changing and differ from person to person, change it via the mechanism contained in that document, Amend it! But that is hard to do, is it not? And you would rather convince just one man, or a small group, that you know what is best for the country. Who, sir, died and made you King? William of Ockham Mar 13, 2017 Well the other choice is nominalism where words have no real meaning. In fact, the article above is meaningless under nominalism which I‘m sure would irritate the author. Hogwash is right. Daniel J. Artz Mar 13, 2017 What incredible hogwash. The assertion that originalism does not allow adaptation to changing times is a complete canard. First, the Constitution sets general principles, not detailed legislation. And these principles should not be altered or abandoned based upon the whims of unelected judges. Originalism is not perfect, but it is a principled means of constraining the discretion of judges. I have yet to see any alternative to originalism offered which, when stripped of its meaningless gibberish and circular reasoning, doesn‘t just boil down to a vapid rationalization for letting so-called "progressive" judges and justices reach whatever results they find preferable. If you want to change the Constitution to update one or more provisions, the means are there in Article V. It has never been a question of WHETHER the Constitution can adapt, but WHO has the authority to make such adaptations. The fact that the National Law Journal pushes this type of propaganda makes me glad that I don‘t pay for a subscription. Anonymous Mar 13, 2017 A limited document with clearly-defined terms allows the people through their elected representatives to evolve over time. Proponents of a living constitution often seek to enshrine their present-day values, over the present-day values of the public at large. Originalism, more often than not, leads to the conclusion that the articulated constitutional right does not exist and thus allows the people‘s current will to stand. Often, less than perfect policy persists for a time, until the people evolve. But originalism is the construct that best accounts for changing circumstances and the evolution of society. David Stryker Mar 13, 2017 Can‘t respond better than this: washingtonpost.com/news/volokh-conspiracy/wp/2017/02/25/out-of-touch-law-professor-criticizes-judge-gorsuch-and-originalism/?utm_term=.b74b447145db Amy Mar 13, 2017 This is a criticism of "originalism," not a fair criticism, or any criticism, of Judge Gorsuch. I‘d advise the author to read Judge Gorsuch‘s opinions Comments are not moderated. To report offensive comments, click here. 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