Original article by Gabe Acosta
During the nomination of Judge Neil Gorsuch, many hours were spent on cable news dissecting the impact of a new “originalist” judge on the Supreme Court. However, not a lot of time was spent talking about what this term actually means.
What follows is a break down what it means to say a judge is an “originalist”, and how being an originalist judge lends itself to conservatism.
Originalism, as it is understood now, was pioneered by Judge Robert Bork. Bork was nominated for the Supreme Court in July of 1987 by President Reagan. Because Bork’s views on civil rights were considered “hard right” there was strong opposition to his nomination. This polarization politicized Bork’s Supreme Court nomination, which began the modern-day partisan ideological arguing that has become commonplace around Supreme Court nominations since then. (Bork’s nomination was pulled, and he spent the remainder of his life writing and speaking about his “Originalist” judicial philosophy.)
According to Bork, an Originalist is someone who interprets the Constitution through the lens of the Framers…the people who actually wrote the document. They strive to interpret the Constitution as they believe the Framers meant it to be read. They do not think that the Constitution should adapt to the morals of the time. Since the Constitution and Bill of Rights were written to define the boundaries of legislative action, they say that the intent of the writers should still be used to find out what those boundaries were.
Furthermore, the Originalist position is that those definitional boundaries were meant to stay in place long into the future. In order to interpret what the Framers meant when they were writing the Constitution, they place special emphasis on any contemporaneous writings or speeches by the individuals themselves. This includes public comments made in support of a part of the Constitution, as well as editorials written at the time, such as the Federalist Papers.
Originalism has also become a partisan issue, despite the fact that It is not totally clear how the core definition of Originalism lends itself to either conservatism or Republican Orthodoxy. During Justice Gorsuch’s confirmation hearing, it was taken for granted that being an Originalist meant being a Conservative and a Republican. This is not always the case. However, it does seem that these days the Originalist position is the same as the Republican position on most issues.
Capital punishment is a good example of how Originalism works. Former Justice Antonin Scalia, the most prominent Originalist Justice to sit on the Supreme Court, ruled multiple times that capital punishment is permitted despite the Constitutional ban on cruel and unusual punishment. Scalia thought that since capital punishment was allowed at the time the Constitution was ratified, the Founders couldn’t have meant cruel and unusual punishment to include capital punishment, since they themselves allowed it. This thinking mirrors Republican thinking on the issue.
Being an Originalist does not mean that all Constitutional interpretations are in line with Republican orthodoxy. For example, in many criminal trials, Scalia sided with the defendants, throwing out evidence that had been gathered without a warrant via technology such as infrared lenses, and digital wiretapping. Scalia had a strong record of ruling that such searches without a warrant were unconstitutional. His position was that using these new technological tools to get evidence violated the privacy guaranteed in the 4th Amendment if they were used without a warrant. These rulings show how Originalism doesn’t always mesh with Republican thinking.
There are many who believe that an Originalist interpretation of the Constitution is a flawed interpretation. Originalism doesn’t really address how morals and values should affect our understanding of the Constitution: an Originalist would just say they shouldn’t. In addition, Originalism doesn’t address those areas of the Constitution where our understanding of the Framers’ meaning are either unclear or differ from from each other as individuals.
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