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The truth about originalism

By: Bridgetower Media Newswires//May 26, 2017//

The truth about originalism

By: Bridgetower Media Newswires//May 26, 2017//

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President Donald Trump watches as U.S. Supreme Court Justice Anthony Kennedy administers the judicial oath to Justice Neil Gorsuch in the Rose Garden of the White House in Washington, D.C., on April 10. (AP File Photo/Evan Vucci)
President Donald Trump watches as U.S. Supreme Court Justice Anthony Kennedy administers the judicial oath to Justice Neil Gorsuch in the Rose Garden of the White House in Washington, D.C., on April 10. (AP File Photo/Evan Vucci)

President Donald Trump has managed to seat a new justice on the U.S. Supreme Court’s bench — Neil Gorsuch, formerly a judge in the 10th U.S. Circuit Court of Appeals. In doing so, the president once again drew attention to the doctrine which “conservatives” have historically preached from whatever hilltop perch they could find, using words which former D.C. Court of Appeals Judge Robert Bork laid down in his book, “The Tempting of America.”

Those words prescribed that what a judge should do when interpreting the Constitution is to determine “how the words used in the Constitution would have been understood at the time of enactment.” This is the “doctrine of original intent” or, as it is more commonly known, “originalism.”

It is sometimes confused by “conservatives” with the “legal process school” of jurisprudence, which emphasizes that the law should be interpreted in accordance with “neutral principles” derived from the text of The Constitution, statutes and appellate-court opinions that carry precedential value. These two doctrines are not the same thing.

In fact, originalism makes such an object of devotion out of the intent of the framers that Bork argues unequivocally that “no person should be nominated or confirmed for the Supreme Court who does not display both a grasp of and devotion to the philosophy of original understanding.” But there is no evidence that any court in this country, including the Supreme Court, or even any individual Supreme Court justice, including the late Antonin Scalia, has ever consistently been originalist in its or his thinking and decisions.

No, Gorsuch’s record, to the extent that I can discern it, is that his instinct is to follow the principles of the “legal process school” or “textualism.”

Both of these judicial philosophies do, however, subscribe in different ways to the belief that process is more important than results in interpreting the law. The “legal process school,” textualism or formalism, presupposes that “neutral principles” can always be discerned and then applied to new circumstances correctly and consistently to guarantee fairness and stability.

Originalism requires that the law be interpreted in accordance with the intent of the founders. It is premised on the proposition that “original intent” can always be divined by “wise judges,” who can then apply it to new circumstances. This process will, it is believed, produce a result in every case consistent with what the founders would have wanted to happen in that circumstance or case.

‘Wise judges’?

Looking back on the 35 years I spent on three different trial courts and the various special assignments I had on the Court of Special Appeals, I cannot say that I share the confidence of the academics, legal writers and judges who profess almost unlimited confidence in the ability of “wise judges” to discern what the intent of the founders would have been in circumstances that were either unheard of or, indeed, even unimaginable in their day.

Nor do I believe these same “wise judges” on both our trial and appellate courts can boast of the sort of infallible logic and interpretive skill that would allow them to divine sacred “neutral principles” from the texts of statutes written by popularly elected lawmakers. The same reservations apply to opinions written by their predecessor “wise judges” on our federal and state appellate courts.

That said, I do recognize the almost religious fervor that certain academics and legal writers, as well as politicians who travel the same ideological path, feel when they argue that it is necessary to curb judicial discretion in order to keep unelected judges from seizing power from the people’s elected representatives. This is what you constantly hear on the campaign trail in both state and federal elections. Naturally, it was echoed at the staging of Gorsuch’s nomination.

As Judge Richard Posner, himself a relatively conservative appellate jurist, and other legal writers have pointed out, there is no legal experience or evidence to support the proposition that this is the choice. In fact, as Posner has illustrated and the legal writer Ronald Dworkin has state, “The question posed by an originalist versus an activist or pragmatic judiciary is not one of democracy or no democracy, but of the kind of democracy we want.”

The kind of democracy we will have will result from whether we choose originalist and textualist judges or alternatively, pragmatist judges. These include both the originator of the judicial philosophy of “legal pragmatism,” former Supreme Court Justice Benjamin Cardozo, and its most illustrious, modern-day practitioner, Posner.

Pragmatists believe that legal rules should be viewed as instruments of justice. As Cardozo says and Posner emphasizes, “Few rules in our time are so well-established that they may not be called upon any day to justify their existence as a means adopted to an end.” The function of the law is to ensure justice and equilibrium.

The origin of the law is not the main thing: the goal is. There can be no wisdom in the choice of legal path unless we know where it will lead. Where are you – and what kind of democracy do you want – Judge Gorsuch?

Steven I. Platt, a retired associate judge on the Prince George’s (Md.) County Circuit Court, writes a regular column for The Daily Record, a sister paper of the Wisconsin Law Journal. He can be reached at [email protected].

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