Confirmation hearings for U.S. Supreme Court justices are an occasion for a national conversation about constitutional law and interpretation. Because Judge Neil Gorsuch is being billed as an originalist, his hearings this week are a great opportunity to ask him five pressing questions about that much-vaunted school of constitutional thought.
Start with the most basic: Why should judges use originalism in the first place? Originalism holds that judges should interpret the Constitution based on the original meaning of the text, but the Constitution itself is silent about how it should be interpreted.
And the framers themselves weren’t originalist. In one instance, James Madison, the lead architect of the whole document, years later as president signed a bill that re-established the Bank of the United States — which he himself had deemed unconstitutional when it was proposed by Alexander Hamilton some 20 years before.
Madison’s initial objection to the bank was that he and the other framers hadn’t given Congress the authority to charter a bank in the list of Article I, Section 8 powers. He was in a position to know what the framers’ intent was, because he was one of them — indeed the most important.
But he explained in 1815 that the acceptance of the bank over decades by all three branches of government with the “concurrence of the general will of the nation” had made it constitutional.
If Madison wasn’t an originalist, why should judges be so today?
The next big originalism question is, how do you generalize 18th century meanings to modern conditions? A case in point is the right to bear arms.
The Second Amendment explains its purpose by saying that the right to bear arms must be preserved because a “well-regulated militia” is “necessary” to the security of a free state. It’s pretty rare for an amendment to contain its own purpose, so you’d think that would be relevant to its original meaning.
Yet in his 5-4 opinion for the Supreme Court interpreting the Second Amendment to cover handguns, Justice Antonin Scalia ran roughshod over the explanatory part of the amendment. Purporting to use originalism, he said that the right to bear arms was an individual right not limited to militia service. He admitted that the right was being protected to enable citizens to serve in militias. But he went on to say that the right includes any weapons that law-abiding citizens ordinarily possess.
This leap of generalization brought Scalia to the conclusion that a right expressly designed for militia extended to block the District of Columbia from regulating handguns. He could have generalized from 18th-century arms to weapons necessary for military service. Or he could’ve said that the original meaning only covers gun ownership by militia members, today’s National Guard. What principle of originalism led him to the rule he chose? And would Gorsuch explain and defend it?
A third crucial question for originalism is what it has to say about stare decisis, the principle that the Supreme Court should follow its precedents. Most, and in fact almost all, of the court’s greatest rights decisions aren’t grounded in original intent, from Brown v. Board of Education (desegregation) to Roe v. Wade and Planned Parenthood v. Casey (abortion), Lawrence v. Texas (gay sex), and Obergefell v. Hodges (gay marriage).
All these decisions are the law of the land. But a consistent originalist would have to overturn them all. If Gorsuch respects stare decisis, he isn’t a consistent originalist. That’s a good thing. But what’s the basis for him to know when to use originalism to overturn existing precedent?
The fourth serious question about originalism relates to a topic on which Gorsuch has written as a judge, namely the administrative state. In his opinion attacking Chevron deference, the doctrine that holds courts should defer to agencies’ interpretations of ambiguous laws, Gorsuch specifically pointed out that the mass of executive agencies created by presidents from Franklin Roosevelt to Richard Nixon sits uncomfortably in the three-branch constitutional structure laid out by the framers. He’s right about this. The agencies form in effect a fourth branch of government, even though official constitutional law puts them under the executive.
How should an originalist relate to the administrative state? Gorsuch reasoned in his anti-Chevron opinion that the courts should be especially careful about deferring to agencies’ statutory interpretation because the agencies are on such doubtful constitutional footing. But would he go further? Should the agencies’ regulatory activities be restricted based on their supposed illegitimacy? If so, the consequences could be far-reaching and deeply anti-regulatory.
This leads to the final and in some sense most powerful question for the originalist: What’s the alternative to a living constitution? Is it, as Justice Scalia would sometimes exasperatedly seem to acknowledge, a dead one?
When Justice Oliver Wendell Holmes introduced the metaphor of the living Constitution, he compared the document to an organism that had evolved over the generations. The Darwinian nature of the image wasn’t an accident. Systems that don’t adapt over time to fit the circumstances will tend to die out, he believed.
It’s not much use for originalists to say that constitutional change must come about through amendment. The framers’ Article 5 amendment process is clunky and difficult, because they didn’t want brief public enthusiasms to usher in changes to the fundamental law.
The living, organic Constitution has changed drastically over the centuries. It has responded to wars, changed moral beliefs, new demographics (including immigration), new technologies, and American expansion, regionally and globally.
Originalism posits that the framer’s vision, without evolutionary additions and subtractions, can fit these radically different circumstances. As Holmes showed in a few lines, that’s a position that flies in the face of what we know about how the world works. Any originalist should be required to explain: Can you defend it? Without a living Constitution, what would we have?
Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem — and What We Should Do About It.”