Supreme Court Nominee Gorsuch: Is “Constitutional Originalism” a Cover for Conservative Judicial Activism?
I hear President Trump was going to make the announcement of his Supreme Court nomination during the Super Bowel half time show – afraid of massive demonstrations by 300 pound guys in shoulder pads – settled for prime time bumping favorite TV shows.
The Democrats have to decide: political strategy, a game plan, and, the question of the candidate himself. The New York Times editorial opines the choices.
In spite of the accolades heaped on the nominee I have doubts, serious doubts.
The nominee defined himself as an “originalist” in the footsteps of Justice Scalia.
What is “originalism?”
One definition,
Originalism, in which the meaning of the Constitution is interpreted as fixed as of the time it was enacted, and non-originalism, in which the meaning of the Constitution is viewed as evolving with changes in society and culture.
“… there is an identifiable original intent or original meaning, contemporaneous with a constitution’s or statute’s ratification, which should govern its subsequent interpretation. The divisions between these theories relate to what exactly that identifiable original intent or original meaning is: the intentions of the authors or the ratifiers, the original meaning of the text, a combination of the two, or the original meaning of the text but not its expected application.”
How do we know the intent of the framers of the Constitution? From April until September of 1787 the fifty-four delegates, all white men, mostly wealthy, including slaveholders from the Southern states. drifted in and out of the sessions. They argued, threatened, proposed deals, traded this for that, and, eventually produced a heavily compromised document.
The large states and the small states, the slave states and the free states, farmers and plantation owners, lawyers and fools cobbled a constitution.. In order to gain passage compromises were crafted: in the 3/5 compromise slaves were counted as 3/5 of a person in the computation of population to determine the number of representatives for each state. Although many of the delegates found slavery reprehensible the question of slavery is absent form the final constitution.
(Read Paul Finkelman, Slavery and the Founders: Race and Liberty in the Age of Supreme Court Nominee Gorsuch: Is “Constitutional Originalism” a Cover for Conservative Judicial Activism? | Ed In The Apple:
