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Batavick: Originalism has plenty of problems

On April 7, Neil Gorsuch became the ninth justice on the Supreme Court, although if politics were like sports, he would forever have an asterisk next to his name. That's because he will take a seat that was stolen from the Democrats. Merrick Garland was supposed to fill the position, but Republican Sen. Mitch McConnell didn't allow him even a committee hearing, despite President Obama still having 10 months in office.

Gorsuch was confirmed using the same tactics that Democrat Harry Reid employed back in 2013 involving the filibuster rule and number of votes required for confirmation. However, when Reid did it, he wasn't thwarting a Supreme Court nomination. He was simply trying to get three of Obama's nominees to the U.S. Court of Appeals for the District of Columbia Circuit approved to relieve a huge backlog of cases. In his effort to deprive Obama of even the smallest accomplishment, McConnell had bottled up the confirmation of new judges.

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But that's not what this column is about. One of the things that recommended Gorsuch to conservatives is that he brandishes an originalist judicial philosophy. Just what does that mean? Originalism is the belief that all legal interpretations of the law of the land — the Constitution — should be premised on the original intent of the Founding Fathers who drafted it.

Former Supreme Court Justice Antonin Scalia was an originalist and preferred to think of the Constitution as "dead" but "enduring," and reflective of "what it meant when it was adopted." This is really a radical view and one that had not been part of the national conversation until the 1980s. Originalism is distinct from the more traditional and progressive belief that the Constitution is a living and breathing document designed to change and evolve as the nation does.

One might see a parallel between originalism and the Constitution and literalism and the Bible. Many conservative Christians believe the Old Testament can only be interpreted literally as the written word of God. Other Christians see it as surely God's word, but initially written down in a number of ancient languages based on oral tradition, and then translated and interpreted by all-too-human parties. This means that much of it should be embraced as part of the salvation story, while other sections, like Genesis, are simply powerful metaphors for God's relationship with us. Hence we have this tension among believers between the enduring and literal "Word" and a body of truths and beliefs that have evolved with our understanding of science.

The problem with originalism in law is that it is not always possible to discern or accept the original intent of those who lived 200-plus years ago. These men were not prophets, but people who were products of a particular cultural milieu.

Since 1790, the context of our lives has changed greatly. We no longer fear the quartering of foreign troops in our homes. The same can be said for parts of the Bible. If we really were to interpret it literally and unalterably, then eating bacon and crabs and getting tattoos would be condemned from every Christian pulpit, and we'd be back to stoning our neighbor for adultery. We've evolved from these ancient prohibitions, just as we've evolved from the days when women and blacks were not permitted to vote.

Conservatives champion originalism because it thwarts so-called activist judges who have been responsible for some of the more progressive interpretations of the law. Where would we be on civil rights, women's rights, reproductive health, the environment, consumer and labor protections, and LGBTQ rights if judges didn't allow the Constitution to live and breathe?

What an originalist court seeks to do is roll back many of the safeguards won at great cost by minorities, women, environmentalists, consumer advocates and labor unions. If originalists can't find Constitutional language relevant to a certain law, then they assert that the federal government over-stepped its bounds in passing it. They will only accept change if it comes through the amendment process. Just imagine trying to get a Constitutional amendment passed for clean air or a safe workplace in today's fractious political climate.

Frank Batavick writes from Westminster. His column appears Fridays. Email him at fjbatavick@gmail.com.



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