Editor’s Note: Austin Sarat is associate dean of the faculty at Amherst College, William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College and author of “Gruesome Spectacles: Botched Executions and America’s Death Penalty”. The views expressed in this commentary are solely those of the author.
Austin Sarat: Originalism is a political symbol of the belief that it is time to take back rights
Gorsuch's critics should treat originalism as a potent statement about who rightly owns rights, Sarat writes
Monday’s Senate Judiciary Committee hearing on Neil Gorsuch’s nomination to the United States Supreme Court followed a familiar script. The judge’s critics painted him as a tool of the powerful, while his supporters emphasized Gorsuch’s stellar credentials and his judicial philosophy.
Though they mostly did not call it by its name – originalism, or the theory that the Court should interpret the Constitution using the meaning its words and phrases held when they were originally written – Republicans praised that philosophy for helping Gorsuch rise above politics. As Senator Charles Grassley of Iowa put it, this philosophy insures that judges don’t try to “update the Constitution and, in so doing, don’t take from the American people the right to govern themselves.”
Today Gorsuch said little about his judicial philosophy, other than to quote Justice Antonin Scalia’s statement that judges should be bound by “words that are in the law, not replace them with words that are not.” Previously, however, he offered ample evidence of his commitment to this theory, praising originalism for helping courts “apply the law as it is, focusing backward, not forward.”
As a result, it is not surprising that, in the run-up to the Senate proceedings, the judge’s critics mounted a campaign to discredit what they have labeled a “sham” theory of constitutional interpretation or to fault what they see as Gorsuch’s hypocritical or merely instrumental use of it. Yet such criticism of Gorsuch’s originalism misses the mark by treating it as simply a theory of constitutional interpretation. It is much more than that.
Originalism is a powerful political symbol of the judge’s belief, as well as the belief of the President who nominated him, that it is time to take back rights, to return them to their original “owners.” If, as his confirmation hearings progress, Gorsuch’s critics and his Senate questioners treat originalism as an obscure theory of constitutional interpretation – and not as a potent statement about who rightly owns rights – they will be making a very big mistake.
Throughout American history, the answer to the question of who owned rights seemed clear. They existed to protect the privileged from an angry populace.
That is why, in “The Federalist Papers,” James Madison warned about the evils of what he called “factions,” groups of citizens “united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”
As Madison saw it, inequality itself – “the various and unequal distribution of property” – was the “most common and durable source of factions.”
Twentieth-century progressives and liberals took Madison’s message to heart. They understood that rights generally were aligned with the interests of dominant groups and warned marginalized groups not to rely on the courts to vindicate any rights claims that they might make.
And so it was (with some exceptions) until the heyday of the Warren Court, when ownership of rights seemed to slip away from the privileged and be seized by marginalized groups aided by “activist” judges.
Every Republican President since Richard Nixon has set out to tame the courts, take back rights too eagerly bestowed (they believed) upon minority groups and return them to those they claimed were their rightful owners. While they have had some success in getting like-minded conservatives on the bench, they have also felt betrayed by justices like Harry Blackmun, David Souter, Anthony Kennedy, and even John Roberts who, in cases like Roe v. Wade or Obergefell v. Hodges, the gay marriage case, each failed to carry out this mission.
Donald Trump understands this betrayal and tapped into the resentments it generated among many Americans. He tried to turn the last Presidential election into a referendum on the Supreme Court. As he put it at a rally in Virginia last year, “Even if people don’t like me, they have to vote for me. You know why? Justices of the Supreme Court.”
Trump’s effort to signal his understanding of the resentment and irritation of those who wanted to take back the ownership of rights worked well. An ABC exit poll revealed that 21% of voters claimed that the Supreme Court was “the most important factor” in their decision. Of that group, 57% supported Trump, while 40% supported Hillary Clinton.
Those voters cared little about the intricacies of constitutional interpretation. But they got the message that Trump would return rights to those who once were able to control women’s reproductive decisions, have an exclusive right to marry, and whose economic interests were protected against threats from “foreigners.”
Neil Gorsuch and his originalism are their reward for turning out and saying yes to Trump.
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Those who attack Gorsuch’s judicial philosophy should understand what it means for the real world outside the Senate’s hearing room. They need to see the political work originalism does for those who are attached to it, to him, and to the President who promised to appoint a Justice who will help return rights to their proper owners, and, as Trump put it, “preserve the very core of our country.”