David M. Dorsen, a Washington lawyer, is author of “The Unexpected Scalia: A Conservative Justice’s Liberal Opinions.”
Justice Clarence Thomas is an uncompromising originalist. Thus, he rejects non-originalist precedent, which is virtually all there is. Thomas would not only change the law on abortion and declare the Affordable Care Act unconstitutional, but he likely would also do the same with Social Security, Medicaid, the Pure Food and Drug Act, most environmental laws and many others. His reason is that the commerce clause was understood to be very limited in 1789.
Before the Senate Judiciary Committee at his 1986 confirmation hearings, Antonin Scalia proclaimed himself a faint-hearted originalist because he could not accept flogging as punishment for a crime. He later recanted and opted for a consistent approach to the Eighth Amendment's "cruel and unusual punishment" clause: If flogging was okay in 1791, it is okay today. But Scalia was faint-hearted in other, and more fundamental, ways. He did not apply originalism to the entire Constitution. Significantly, his free-speech jurisprudence was not originalist. For example, he rejected content-based distinctions, such as criminalizing the burning of an American flag, but only when it was done as a protest. He also respected most precedent, rejecting stare decisis only for what he regarded as egregious distortions of the Constitution, including decisions on abortion, the right to die, the death penalty and gay rights. Finally, he chose originalism because it seemed to him to be appropriate, and not because the Constitution's framers endorsed it (they didn't).
Because a judge on a lower federal court is constrained by Supreme Court precedent, his judicial opinions are not a good measure of his judicial philosophy. It is when he is free to speak his mind, such as in a book or an article, that his jurisprudence reveals itself. Gorsuch proclaims himself an originalist. His expressions are primarily in a book, "The Future of Assisted Suicide and Euthanasia," published in 2006, and a recent article in the Case Western Reserve Law Review on Scalia's legacy based on a speech he gave last April. These two writings give inconsistent signals.
To oppose assisted suicide and euthanasia, Gorsuch’s book relies mostly on moral and pragmatic arguments, not on originalism. The book devotes just two pages to English and American common law but dozens of pages to fairness and equal protection and to “the law of unintended consequences.” His concern is the (irrevocable) danger of mistake, abuse or coercion, whether by zealots, family members, unqualified or biased physicians, or insurers, as well as lack of viable standards.
Gorsuch’s 2016 law-review article reflects uncompromising originalism. For him, the Constitution makes an emphatic distinction between lawmakers and judges, with the latter simply enforcing the law and not writing it; judges should stick to enforcing the law and not be creative. To Gorsuch, a failure to adhere to originalism makes a judge a “pragmatic social-welfare maximizer” and leaves us “only with a radically underdetermined choice to make.” But he exaggerates. Non-originalist judges rely on precedent, history, the language of the Constitution and consequences. Gorsuch’s description is a caricature of the majority of justices.
Gorsuch’s originalism ignores the enormous problem of ascertaining what the law and practice were around 1790. How would the founding generation answer contemporary questions, such as applying the Fourth Amendment’s search-and-seizure clause to a device that detects heat emanating from a building in an investigation into unlawful cultivation of marijuana?
Gorsuch does not even mention the problem of choosing between the views of the two most influential originalists in history. Scalia’s version of originalism led him to write 135 liberal opinions. Thomas disagreed with Scalia on half his liberal opinions, including on the unqualified right of a criminal defendant to confront witnesses against him, a broad concept of what constitutes an illegal search and seizure, and the requirement that a jury and not a judge make crucial findings in a criminal case. We need Gorsuch to explain his originalism and what that would mean for the Constitution as we know it.
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