Friday the U.S. Senate is expected to confirm Judge Neil Gorsuch as the newest associate justice of the Supreme Court (SCOTUS).
During his Senate Judiciary Committee hearings much has been asked and said about his judicial philosophy. He is considered an “originalist”—one who basis his judicial decisions according to what he considers was the original meaning of the language as penned by the authors of the American Constitution in 1787.
Opponents of Mr. Gorsuch decry what they argue is a rigid, inflexible philosophy that fails to interpret the Constitution by applying its “meaning in modern times.”
Supporters assert that Gorsuch is a mainstream judge who honors the original language of the document and view of the founders about their world and their intent.
We err if we subscribe completely to either the “originalist” or “modern meaning” school. This zero-sum approach fails to recognize the flexibility of the Constitution—a document that serves us well if we recognize the wisdom embodied in its original words that continue to speak as eloquently in our modern times.
Let’s examine the first two amendments to the Bill of Rights.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Religion: Our founders clearly did not want a state-sponsored religion that favored one form of faith or worship at the exclusion of others. George Washington, writing to the Hebrew Congregation, affirmed that all citizens “…possess alike liberty of conscience…– while every one shall sit in safety under his own vine and fig tree and there shall be none to make him afraid…”
Later questions about the exercise of religious freedom have forced SCOTUS to address issues unimagined at the time the Constitution was drafted. As a result, the courts have had to interpret the original language in light of contemporary issues.
Freedom of Press and Speech: In an era of newspapers, flyers, placards and other small media, the concept of radio, television or social media could not have been conceived. Yet, the original language of the Constitution does not restrict the broader application of this fundamental right from encompassing the full range of communication media that have evolved in subsequent centuries.
The vehicles of dissemination and expression have changed but the Constitution clearly protects content regardless of the mechanism for distribution.
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
One of the most contentious debates is about role of firearms in American society and how they should be employed and controlled.
The wording should cause no confusion. As written, the intent is to allow citizens to have guns solely for national defense. Hence, the word “militia”—the Armed Forces including the National Guard.
This is the Collective Rights interpretation of the Second Amendment. I agree with former Supreme Court Justice John Paul Stevens, who advocates changing the language to read, “when serving in the militia.”
Several federal courts including SCOTUS have erroneously ignored the militia reference in a series of subsequent rulings that have made weapons easily and widely available for persons whose use of arms goes far beyond defending the nation. The FBI reports that firearms are used in nearly 70 percent of violent crimes.
This is an obvious and tragic consequence of the misinterpretation of original intent.
America’s founders drafted a document to respond to the realities of their time yet with language that wisely recognized the inevitability of unforeseen changes in society.
Strict originalist interpretations would have precluded, limited and stifled religious freedom and speech. Intolerance would rule and dissent would be punished.
The courts have wisely adopted a “meaning of modern times” philosophy to confront and resolve contemporary challenges to faith and discourse.
However, “modern times” has resulted in incorrect interpretations that have allowed America to become a more violent society. An “original meaning” approach would have saved us from the too frequent mass shootings. Proper court rulings would have spared the dozen victims in the Aurora, Colorado movie theater, saved the 20 children of Sandy Hook Elementary School, and prevented the massacre of 32 persons at Virginia Tech University.
The Supreme Court was created to assure the balance between a strong national government and individual citizen rights, and guarantee both societal order and personal freedoms.
To do this properly, the appointment of qualified justices is required from time to time. The men and women who established our republic engaged in robust debate about the type of government they wished for America. They further recognized that such debate grows from sincerely and strongly held beliefs about society.
Thus, a Supreme Court occupied by men and women with disparate judicial philosophies and constitutional interpretations is appropriate.
These differences assure that both the voices of “original meaning” and “meaning of modern times” will be represented. As the next associate justice of the court, Mr. Gorsuch is expected to be an advocate of “original meaning.” But he will not always be in the majority. And that is how it should be.