I. Originalism and Logic*
Neil Gorsuch lauds judges who claim to “apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be . . . .” On its face, this is at best an odd sort of praise. Laws are generally forward looking in their desire to govern future behavior. And even if we could always focus back to determine legal meaning, why would we want to disconnect meaning from ongoing life in such a way? Why, for example, should the absence of email in George Washington’s day mean our modern use of email isn’t covered by our modern notions of “speech”? Excluding email from “speech” today would be silly and we have refined “speech” to include email in both law and in life. Of course, if we refine meaning for “speech” and “email,” why shouldn’t we do the same for other things in other contexts as they change with time? It’s hard to see how the odd backwardness of Originalism as stated here isn’t fatal from the outset. How does Gorsuch’s “focusing backward, not forward” help us here?
I also worry that confusing “a reasonable reader’s understanding” (whatever this might arguably mean) with speaker meaning provides tempting cover for activist judges. Where there can be more than one "reasonable reading, why not pick the reading that best suits the judge? Second, since words have multiple definitions, why not pick definitions that best suit a judge's values and politics? In fact, the problem is even more complex since different words can share the same spelling thereby compounding the problem further. For example, imagine a man who was both a gun collector and an owner-president of a lead mine. Imagine further that the man penned on his deathbed the following two-line holographic will: “I leave my lead to my oldest son. The remainder of my estate I leave to all my children to share and share alike.” Did the testator mean for his oldest son to inherit the lead mine, a stash of lead, bullets, the presidency (a leadership or “lead” position) of the mine, pencils, or some combination of the foregoing or of some other possible definitions of at least two same-spelled words “lead” and “lead”? If one is conservative to the extent of favoring primogeniture, for example, can’t that at least subconsciously lead (once more no pun intended) one to pluck out the meanings that give the most to the oldest child if one is constrained only by a dictionary and the two lines of text? Gorsuch does refer to “history” in his lauded Originalism but history in any broad sense seems to provide little guidance here since some testators have favored primogeniture and some have not throughout history. More troubling, the judge’s understandings of history may well be colored by his politics and judicial philosophy. And, again, why would we want to elevate dictionaries in ways that encourage judicial activism in light of such a tinted history?
The old Masters: how well they understood
Its human position; how it takes place
While someone else is eating or opening a window or just walking dully along;
How, when the aged are reverently, passionately waiting
For the miraculous birth, there always must be
Children who did not specially want it to happen, skating
On a pond at the edge of the wood:
They never forgot
That even the dreadful martyrdom must run its course
Anyhow in a corner, some untidy spot
Where the dogs go on with their doggy life and the torturer's horse
Scratches its innocent behind on a tree.
Quite leisurely from the disaster; the ploughman may
Have heard the splash, the forsaken cry,
But for him it was not an important failure; the sun shone
As it had to on the white legs disappearing into the green
Water; and the expensive delicate ship that must have seen
Something amazing, a boy falling out of the sky,
Had somewhere to get to and sailed calmly on.
As the above problems show, Originalism as Gorsuch appears to describe it above just cannot work. A "reasonable" contemporaneous reader's "understanding" of "equal protection" or other law simply cannot trump a differing actual meaning of such law any more than ancient audiences' understandings of the Decalogue can trump God's meaning. This impossibility is a good thing. People considered "reasonable" at any given point in history (such as Senator Douglas ) can be terribly wrong, and their errors must always be correctable if we are to have a just and rational legal system. An Originalism mired in audiences of the past like Senator Douglas cannot provide such justice and correction. I have focused on Gorsuch alone here because I want to know (and have him grilled about) what he thinks today in light of the above troubling quote. What other "Originalists" say about "Originalism" and what they think Gorsuch means do not worry me at the moment. Gorsuch (and not such other "Originalists") is the one up for confirmation for the current open Supreme Court seat and I want to hear today's answers from the man himself.