Neil Gorsuch, Not So Original

Neil Gorsuch has officially been sworn in as a Justice of the Supreme Court.

His interpretation of the U.S. Constitution will now be a determining factor in precedent-setting Supreme Court cases for years to come. In terms of how Gorsuch interprets the law he has billed himself as an “originalist” like the late Antonin Scalia, whom he has replaced on the Court. Originalists are generally understood to believe that the Constitution is a static, or dead, document, and should be interpreted as the original framers intended when it was written. That sounds pretty straightforward, but, as with anything related to the law, it’s not quite that simple.

For starters, even if Gorsuch had been an originalist at some point, he lost all originalist credibility by accepting this appointment to the court. The original authors of the Constitution clearly intended that a vacant Supreme Court seat be filled by the president in office when the seat was vacated. They did not write in caveats for late-term vacancies or exceptions in the case that the party who controls the Senate just really, really doesn’t like the president and doesn’t want to confirm his appointees. A true originalist would have declined this Supreme Court seat on the grounds that it rightfully belongs to Merrick Garland according to the intent of the authors of the Constitution.

It seems that Gorsuch also doesn’t mind straying from the original meaning of the Bill of Rights. The Second Amendment states “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In one of his only rulings involving this amendment Gorsuch wrote in his opinion “the Supreme Court has held the Second Amendment protects an individual’s right to own firearms and may not be infringed lightly.” The Supreme Court had indeed held that, thanks in large part to Scalia, but individual non-militia related gun ownership is almost certainly not what the original framers intended the Second Amendment to mean.

On others issues Gorsuch really can’t be guided by the Founding Fathers, because many recent legal challenges are just too far removed from the world in which the Constitution was written. The Founders cannot be looked to for a meaningful opinion on gay marriage not just because they were products of their very homophobic time, but also because their whole concept of marriage was completely different than ours and depended on the legal status of women as second class citizens. On many issues like this, it’s not only good that Gorsuch isn’t actually an originalist, it’s essential.

The original authors of the Constitution were sexist, racist, homophobic elitists and those prejudices are explicitly and implicitly written into the document. It has taken centuries of fighting to move beyond those original problems with the Constitution and no one, especially not anyone on the Supreme Court, should have an agenda that involves moving backwards towards inequality. If being an originalist doesn’t, in practice, mean adhering to the original meaning of the Constitution, then what does this label mean and, specifically, what does it mean to Gorsuch? Right now, it’s hard to say, but with a number of major cases ready to be heard by the Supreme Court, it won’t be long before we find out.

Alexis Chapman is a Political Consultant and Writer specializing in policy analysis, from international law to local ordinances. She’s lived in Australia, Ghana, Vermont, Hawaii, and Texas and has worked for small and large NGOs, state legislature, industry associations, and a variety of publications. She is a regular contributor to Political Storm and you can find her on Twitter @AlexisAPChapman.