By Richard Elfers
“The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”
These words of the late conservative Supreme Court justice Antonin Scalia reflect the “originalist” interpretation of the Constitution. Trump’s nominee to Scalia’s vacant seat, Neil Gorsuch, holds this same view.
Actually, there are at least four major ways to interpret the Constitution and numerous varieties in between: originalism, textualism, fundamental principles and modernism.
Many conservatives believe in originalism as defined above. In order to understand the importance of this perspective it will be helpful to understand the three other viewpoints and the justices’ positions on these views.
The second viewpoint, textualism, is similar to originalism. It means looking at the meaning of the words and then giving each word its ordinary meaning. The argument for this approach is that the plain meaning keeps the court neutral and helps keep justices from imposing their own values upon what the Constitution says.
The third interpretation – fundamental principles – looks at the thinking at the time of the writing of the Constitution. The founders held such views as natural rights (equality, life, liberty and property), the rule of law (no one, including the leader, is above the law), and representative democracy.
Examining the Constitution through these spectacles causes someone to see the context of the writers’ thinking.
The fourth perspective, in greatest contrast to originalism, is called modernism. This method emphasizes that the Constitution is a “living document” that needs to adapt to changing times and contemporary needs. Progressives usually take this approach.
There is one truism about Constitutional interpretation: justices take the view that fits their own experiences and backgrounds. Currently, the four progressives on the Court –Breyer, Bader-Ginsburg, Kagan and Sotomayor – tend more to the modernist approach.
Justices Thomas, Alito and Roberts tend toward originalist, textualist and fundamental principles perspectives. Thomas is most strongly and originalist and textualist. Alito tends to defer to the states over the federal government, making him closer to fundamental principles in regard to power. Chief Justice Roberts has tended to defer to the opinions of Congress and the state legislatures – originalism that emphasizes the views of those bodies rather than what words the founders used. Roberts voted in favor of the legality of Obamacare, but also against gay marriage.
Justice Kennedy, the swing voter, tends to vote progressive on social issues like gay marriage, but he is tough on crime and is supportive of protecting the power of the police. Kennedy varies between fundamental principles and modernism. He has been described by some as a “libertarian” politically.
While Trump nominee Judge Gorsuch is an originalist, he believes that the Court has become too political and justices have lost their independence. If confirmed, he will work to build consensus, rather than standing alone in his views as Scalia sometimes did. In that sense, Gorsuch leans toward the fundamental principles perspective.
The modernist view will not prevail with the new appointment, whether Gorsuch or some other conservative. It seems right now that the Democrats are out for blood and revenge for the Republican-controlled Senate’s refusal to even hold hearings on Obama nominee Judge Merrick Garland.
At this point, it doesn’t matter whether Gorsuch will be a good judge or not. What matters is that the Democrats feel robbed. The Democratic approach is very immature. Democrats need to face reality and accept the fact their candidate lost the election.
The Democrats will likely try to stop any appointments to the Supreme Court to maintain at least a tie between modernists and originalists/fundamental principles. It’s likely that the Democrats will do to the Republicans what the Republicans did to them the past 10 or so months – refuse to vote for any Trump nominee. Republican leaders will probably have to use the “nuclear option” to end the requirement for 60 of 100 votes in the Senate to get any nominee confirmed.
What we need in the government are our senators and representatives to act like adults rather than self-centered, myopic children. What we need from our Supreme Court is a justice who believes the Court should be above politics.
Perhaps Neil Gorsuch is the best candidate for the job no matter which Constitutional perspective he takes.
