The Neil Gorsuch Nomination

In general, The Constitution may be interpreted in one of two equally valid ways. “Originalists” believe the document should be interpreted narrowly and focus on the strict meaning as intended by the Framers. This approach is not necessarily tied to traditional “liberal” or “conservative” camps, but refers more to an interpretive approach. The second approach is viewing the Constitution as a “living document” that must be shaped over time because of evolving social and economic forces. Article V of the Constitution provides for an amendment process, but those who espouse this second approach find that formal process too slow and unwieldy to deal with a rapidly changing society, and they offer the scarcity of amendments (27 since 1791) as evidence.

Both approaches are valid and easily defended. Both also have faults. A problem with originalism is that the Framers wrote the Constitution 230 years ago and could not possibly have envisioned me composing this document on a word processor or you reading it online. Nor could they have envisioned America’s developing social structure, the consequences of industrialization, a need for a rapid response in military crises, or using dogs and helicopters to find illegal drugs. In other words, expecting legislators and judges to apply a 230 year old document to modern issues is problematic.

Considering the Constitution a living document is also perilous. At what point is the Constitution stretched too far? How closely should governmental decisions be tied to the original text? What is to stop judges from being legislators themselves and interpreting the Constitution so broadly that it becomes a meaningless piece of paper?

For a number of reasons I won’t explain here (maybe in a later post) because the explanations would consume quite a bit of space,  I’ll just say I tend to accept the second approach. In Gompers v United States (1914), Justice Oliver Wendell Holmes succinctly summarized this approach by stating “Provisions of the Constitution of the United States are not mathematical formulas having their essence in their form, but are organic living institutions transplanted from English soil. Their significance is not to be gathered simply from the words and a dictionary, but by considering their origin and the line of their growth”. Like Holmes, I believe judicial decisions are not formulaic and must sometimes shape the Constitution to contemporary circumstances.

Judge Neil Gorsuch, President Trump’s first Supreme Court nominee, is an originalist in the mold of Antonin Scalia. I disagree with his approach to interpretation and, consequently, with a fairly large number of his decisions. However, he should absolutely be confirmed by the Senate unless some currently unknown moral or ethical shortcomings are discovered. His resume is impeccable and his experience is noteworthy. He graduated from Harvard, Columbia, and Oxford. He clerked with two Supreme Court justices. He served in private practice with a highly reputable law firm. He was confirmed to the U.S. Court of Appeals by unanimous Senate voice vote in 2006. After his confirmation I will almost certainly complain about his votes on the Court and criticize opinions he writes, but he is highly qualified for the position.

I know there are those who argue that the Senate should have considered President Obama’s nominee, Garland Merrick, during its 2016 session, and I agree. However, I disagree with holding up the appointment of a qualified jurist simply because of retribution or petty partisan politics.

In some future post I’ll probably offer arguments regarding the proper role of American courts and Constitutional interpretation, but my purpose here is to argue for Neil Gorsuch’s confirmation.

18 thoughts on “The Neil Gorsuch Nomination

  1. Fair enough. But it goes without saying that one should be careful with Holmes…he did write that infamous opinion in Buck vs. Bell (1927), declaring that “Three generations of imbeciles are enough” as an excuse for forced sterilization of women by the states.

    • Agreed, Jamie. I certainly don’t agree with all of the specific conclusions Holmes reached (he was writing 100 years ago after all), but he did pen lots of good law (or good dissents that later became good law). I just tend to accept his approach to Constitutional interpretation though I know that is fairly unpopular in some circles today.

      Thanks for your comments.

  2. I agree with your “stretching” the Constitution comment a lot. Possibly because I still feel that some cases should have been decided by “Equal Protection” as opposed to “Interstate Commerce”. Think I got those right in Con Law, but still bugged me.

    Look forward to reading more of your posts.

  3. Thank you for the post, Dr. Roebuck.

    Could you elaborate on how originalists might define liberty in the context of bodily autonomy?

    The reason I ask is because Judge Gorsuch is a staunch opponent of physician assisted suicide. However, the Preamble says one purpose of the Constitution is to secure the “Blessings of Liberty for ourselves and our Posterity.” If that is interpreted in an original context by Judge Gorsuch then how can he oppose physician assisted suicide (which would be an expression of bodily autonomy)?

    Or, is it possible that the Preamble itself is a non-binding part of the Constitution in the eyes of some originalists? Has the Preamble been mentioned in previous court rulings?

    • I don’t recall the Court using the preamble to justify a decision, Chase, but that certainly does not mean it has not done so; even though I teach Constitutional Law I’m familiar with only a portion of the Court’s case history. However, even if the courts did use the preamble’s phrase you mentioned, I could see how that phrase might or might not be relevant to physician assisted suicide; the phrase is rather vague as are many or most Constitutional passages.

  4. I felt like I could even hear your voice, as if I was right back in your classroom. You will always be my favorite professor and through your blog, I’m delighted you’re “teaching” me again. I really enjoyed reading this and am looking forward to more!

  5. Although I agree with your thoughts, it’s clear to me that the 9th Circuit over stepped its bounds by blocking a lawful EO from the Executive Branch. Checks and balances are vital to our Government and I support them. However, this is clearly a case Judicial legislation. Judge Gorsuch needs to be confirmed before this 9th Circuit decision goes to the SCOTUS. There is a clear Federal question regarding Judicial legislation and it is vital that the SCOTUS be complete so governmental checks and balances can be properly carried out. By the way, I’m going to love this blog!

    • I agree that the 9th circuit likely overstepped its authority, especially since it failed to even mention the law in question. As you know, the 9th tends to act in such manner on occasion, so this is not the first time. I assume you were similarly frustrated when the courts struck down President Obama’s executive order on immigration and his recess appointment to the NLRB. As I said, I also hope Gorsuch is confirmed but we would not have an even number of justices had the Senate performed its Constitutional responsibility last year and confirmed Garland Merrick, who was also highly qualified.

    • Jamie Rife, “bodily autonomy” is the concept that your body belongs to you and no one else may use it for any purpose, without your consent. Conversely, another person’s body belongs to her/him and you, I, nor any other person can tell them how to use their body, or not use it. Neither can we force him/her to use his/her body, or not use it in any manner we might choose.

      Some obvious violations of body autonomy are: rape, murder, forced extraction of body parts (as for a transplant), and forcing a person to be the life support of another or to be the host to another organism.

  6. Thanks for your eloquent efforts to bring rational & civil discourse to what has become an often volatile & contentious environment. Question: If the constitution is to be elastic & open to interpretation, then how does it provide a sturdy foundation for our gov’t? If any substructure (i.e. Skeleton. frame of a house, etc.) is pliable & flexible, then how is it any framework at all?

    • That is honestly the essential question, Cris, and that is the danger of adopting the “living Constitution” approach. There is research (which I’ll try to find before writing a more thorough post on the topic at some point) that demonstrates that the courts don’t generally deviate too far from the general public consensus on most issues. Of course there are always notable exceptions. However, the best protection against stretching the Constitution too far is to ensure the courts (especially the Supreme Court) always have a mix of judges, some originalists and some accepting the “living Constitution” approach. This will be the case as long as we continue switching parties in the presidency with at least some regularity.

      • If there is risk associated with “stretching” the interpretation of the costitution too far, is there then a risk to having too narrow of an interpretation? If not, then why should we ever give creedence to the presumption that it is a “living document” and ever subject it/ourselves to the possible adverse effects of broad interpretation?

        • Good questions. I’m just of the opinion that the Constitution cannot be treated as a static document; it absolutely requires interpretation and, consequently, it will expand.

          The 4th Amendment requirement that a Search and Seizure of property must be based on a “warrant” is a good example. In 1789 that was a reasonable requirement, but today when vehicles can move probably hundreds of miles before an officer could get a warrant that requirement is less logical.

          Another good example is Congresses responsibility to regulate “Interstate Commerce” from Article I. In 1787 that was intended to keep states from dong things like charging tariffs for a load of watermellons being shipped in to their state so our country could have a national economy. Congress alone would regulate commerce between states. The Framers could not have envisioned trains crossing state lines, airplanes, 18 wheelers, etc. Case law interpreting the Commerce Clause goes back to the early 1800’s and a review of that case law makes it pretty clear the Court had to apply the clause to circumstances. However, Even I believe that clause has been stretched too far at times (see Wickard V Filburn). The Court began applying the breaks to that broad interpretation back in the 1990’s, again because the Court’s membership became more balanced.

          And there is danger in interpreting the Constitution too narrowly because some passages just don’t work. Article I, for example, requires states to pay their debts with gold or silver coin. That might be a problem today!

          I’ll stop because I could go on about this for quite a while. I’m sure I’ll offer a post on the responsibilities of courts at some point in the near future.

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