Not the parent, but I'm not a fan of Gorsuch. I don't suspect he is partisan or politically biased. I just think his jurisprudence is totally kooky.
Originalism never made sense to me. The constitution was written by visionaries who intentionally wrote it as a framework to serve as the foundation of a revolutionary new nation. It is vague by design so as to be forever relevant. I strongly suspect the ratifiers themselves would not be in agreement on a whole host of constitutional cases before the courts. Even just the idea that the text holds some singular, original, unchanging intent, seems bonkers. But not only that, originalists justices claim to have some method of knowing what it is!
Not trying to start a fight, but that's why he's not my favorite. Based on his interesting dissent it seems like he and Sotomayor may be the strongest 4A proponents on the court, so there is hope I may like the direction of many of his decisions. Though I may not like how he arrives there.
Agreed that the constitutional ratifiers wouldn't agree on a lot of modern constitutional cases; and that their original intent (what they were thinking of, specifically) when they wrote it would not fully suffice to provide application in modern cases, since they couldn't have thought of all the situations we're dealing with.
However, it's clear that the ratifiers had particular principles in mind, and that those principles are both discernible with careful textual criticism and applicable to modern cases.
> Even just the idea that the text holds some singular, original, unchanging intent, seems bonkers.
To think the text doesn't hold an unchanging meaning seems bonkers to me. How can the principles expressed in a legal document change over time? Sure, its application will change (or it ought to), but IMO to allow a text's interpretation to change is to (a) allow room for the text's principles to be ignored, (b) erroneously conflate legal interpretation and application, and (c) allow ourselves the freedom to "go with the flow" of modern trends and become unfaithful to the text.
I don't see how one can faithfully uphold the US Constitution (or any legal text, for that matter) without interpreting towards the authors' evident intent, analysing the principles behind it, and applying those principles. The text didn't arise out of a vacuum, and our interpretation doesn't have to either. We have a lot of help in the Federalist Papers, letters the ratifiers wrote, etc. -- all of which provide a helpful, reliable commentary.
In attempting to sever the real author from the text, postmodern literary criticism really dealt a hard blow to truth in textual interpretation. "Open text" legal jurisprudence is only one part of the fallout.
I don't think we're so far off. Of course I wouldn't object that there are certain principles in the constitution, that are relatively constant.
But constitutional cases tend to deal with a lot of specifics. How much bail is "excessive"? How long until a trial has not been "speedy?" When is "due process" satisfied? If we were to ask these and similar questions to Madison, I think his answer would be something like, "the courts should figure that out." I don't think the meaning of these things has changed significantly over time. I suspect they were as broad and vague in the mind of Madison as they are to us.
The courts should rule in a way that is in keeping with constitutional principles, but also that creates good outcomes. The first part of that equation comes from the constitution and the past, yes. But the second part requires that we apply knowledge from the present.
Sounds like we agree quite a bit. Even so, I’m often deeply disappointed in outcomes of constitutional cases (and government behavior in general) because it seems like they’re often “thinking too hard” or failing to courageously apply a simple, straightforward, and apparent reading.
I’m a fan of Gorsuch because he doesn’t seem to do that... Originalism as I see it is the opposite of open text jurisprudence, where the text is viewed through modern values and assumptions and made to bend to them.
So what do you think would be the originalist position on cellphone* tracking without a warrant, and how does this square with the dissents in this case?
* Feel free to replace cellphone with "magical device almost everyone carries that constantly reports their precise location to a register that stores it for up to five years". :)
> The constitution was written by visionaries who intentionally wrote it as a framework to serve as the foundation of a revolutionary new nation. It is vague by design so as to be forever relevant.
This in turn makes no sense to me.
Why would they go through the immense trouble to make this constitution, if they thought it could mean anything people wanted in the future?
How would that be different from the normal state of the time, that had no constitution?
Well, to start I'll just say, despite my flippant phrasing above, I am not so naive to think that originalism is a stupid idea. There are people that have forgotten more about law than anyone here will probably ever know on both sides of this debate, so I think there is obviously something to both sides.
But to your point, it's not that they wanted it to mean anything. It's just that the constitution is broad and vague, not because we lack historical context or some window into the mind of Madison, but because it is intentionally vague. Let's take the relevant amendment here:
> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause...
That phrase "probable cause." Not very specific to my mind. It can't mean anything at all, but it leaves most questions unanswered. Is an anonymous phone tip probable cause? If an officer pulls over a car and the driver is sweating and nervous, is it probable cause to get a warrant to search his house for drugs? What if the driver smells like drugs? What if he is carrying lots of cash? What if there is blood on his shirt? And on and on...
Without the hundred plus years of case law that have worked to develop tests for what qualifies and doesn't qualify as probable cause, it really might mean almost anything. What good does it do to ask, "What would James Madison have thought about a driver that smells like drugs?" He probably would have thought it was an interesting legal question for the courts, that's what! Judges should figure that out by trying to predict the real world outcomes of their decisions, not reading tea leaves in the Federalist papers.
OK, I can see that that is a place where the interpretation is intentionally left up to future courts and precedent.
Since you can't foresee every possible future circumstance, you try to establish a general principle to apply instead.
But I don't think that means all parts of it was intended to be freely reinterpreted to mean anything the people in power in the future wanted. I think the main purpose of the constitution was to prevent that!
Have you read The Federalist Papers? I used to be skeptical of Originalism but those documents changed a lot of how I think about the law and make it pretty clear that the Founders did not intend for the Constitution to be "just a framework" to be casually interpreted. They understood the dangers of Democracy, and were pretty explicit about it.
Originalism never made sense to me. The constitution was written by visionaries who intentionally wrote it as a framework to serve as the foundation of a revolutionary new nation. It is vague by design so as to be forever relevant. I strongly suspect the ratifiers themselves would not be in agreement on a whole host of constitutional cases before the courts. Even just the idea that the text holds some singular, original, unchanging intent, seems bonkers. But not only that, originalists justices claim to have some method of knowing what it is!
Not trying to start a fight, but that's why he's not my favorite. Based on his interesting dissent it seems like he and Sotomayor may be the strongest 4A proponents on the court, so there is hope I may like the direction of many of his decisions. Though I may not like how he arrives there.