During judicial confirmation hearings on Tuesday, the Senators’ questions about Gorsuch’s judicial philosophy centered on whether he is an “originalist.” This comes as no surprise, since, thanks to Justice Thomas and the late Justice Scalia, originalism is now the litmus test for conservative judges. Voters and pundits on the Right now ask judges whether they are activist or originalist, whether they legislate from the bench or interpret the law as its writers meant.
But this distinction, posited by originalists, between the acts of moral judgment and legal interpretation rests on shaky ground as legal philosophy and sits on equally questionable terms with conservative tradition. Originalism technically refers to a whole family of jurisprudential thought, but the brand of originalism advanced by Justices Scalia and Thomas, called original intent, is the one most conservatives in America mean when they talk about originalism. Original intent dictates that cases must be decided based exclusively upon the Constitution and the laws of the United States as their authors meant for them to be read. Following this approach, a judge is nothing more than one who knows the law very well and can quote the laws pertinent to a certain case in court. Court should, therefore, be a straightforward and technical matter, and a good judge is simply one who can remember and quote the laws exceptionally well. This approach appeals to the denizens of an era defined by the rationalistic extraction of normative claims from public discourse.
But the law is not as uniform as originalism suggests. Legislators and judges alike are in constant disagreement with one another over what is legal and what is constitutional. Likewise, the Constitution itself is the epitome of compromise, a document that espouses not one pure political philosophy, but all the conflicting ideologies of its squabbling framers.
Understanding the essential contradictions of the law, the role of a judge cannot be, as original intent would have it, that of a mere reader of the law. Because the written law does not express a uniform set of ideals, the judge must infer one from the law’s abundant agreements and contentions.
In short, judges must engage in both analysis of the law and moral judgment of it, since it falls to them to determine the meaning of law’s contradictory points and develop from it overarching principles for human conduct and the state. The difference between the originalist approach and other approaches to jurisprudence turns on the originalist’s insistence on the separation of the technical and moral acts of legal interpretation.
To understand this distinction between technical and moral activities, think about the difference between the construction worker and the architect: where the construction worker follows the instructions already laid out in the blueprints, the architect must design something that does not exist yet based on already existing principles, but these principles (e.g. the laws of physics and the building’s purpose) have determined ahead of time the building he will design. At times, the principles by which the architect designs may be in conflict; for instance, if it would be useful for him to build 6 feet wide and 90 feet tall, the laws of physics would necessitate he design the building otherwise. The construction worker never runs into those contradictions. He simply follows the blueprints. In the same way, where an originalist reading a passage of law claims she is engaging in a technical activity, like the construction worker. Another jurist might be more open to the fact that in deriving a unified understanding of the whole body of written law’s meaning he is engaging in a moral activity, like the architect.
To be clear, the problem with originalism isn’t that understanding the original meaning of the law is impossible. Indeed, such understanding is both possible and essential in many cases, where “due process,” for instance, has a clear and well-established meaning in English law. But difficult cases cannot be solved this way because their difficulty arises precisely from their lack of clarity. As Judge Gorsuch aptly observed, “When a lawyer claims Absolute Metaphysical Certainty about the meaning of some chain of ungrammatical prepositional phrases tacked onto the end of a run-on sentence buried in some sprawling statutory subsection, I start worrying.” So in deciding cases where the law is not clear, the only difference between an originalist and another jurist is the originalist’s lack of clarity when it comes to what kind of moral reasoning he is using to arrive at his conclusion, not whether he is using any at all. So originalism’s problem is an epistemological one, rooted in the hubris of rationalism, that rejects the moral responsibility of interpreting the law.
Many others have better criticized this insufficiency in originalism, but to me, originalism’s most striking contradiction is that American conservatives wholeheartedly embrace it. On the surface, originalism may appear “conservative” because of the outcomes it has produced on the Supreme Court. But at its core, originalism is a legal philosophy, not a political agenda. As such, it should not be understood in terms of its congruence with conservative policy objectives, but in terms of its concert or discord with conservatism as a way of thinking about politics broadly.
By attempting to reduce legal proceedings to a merely technical activity, originalists buy into the rationalist idea that politics, like everything else, is a scientific business and not a moral one. Conservatism’s greatest minds from Edmund Burke to Michael Oakeshott have argued against that very position. The entire point of conservative political philosophy pushes against the prevailing rationalist bent that attempts to separate tradition and moral activity from politics and all areas of life.
In this way, the American Right’s acceptance of originalism indicates a shift away from conservatism in favor of rationalism’s enticing straightforwardness. But by forgoing the essential process of moral judgment over the body of written law, we are actually participating in the removal of moral complexity and insight from political discourse. Simply put, originalism accepts law as amoral, and the Right’s adoption of originalism as their preferred legal philosophy only serves to propel American politics and culture further down the straightforward, common sense road without morality.
As a natural law theorist, Neil Gorsuch avoids the rationalist pitfalls of common sense originalism. Unfortunately, his fellow conservatives’ obsession with originalism has made it difficult for him to avoid using the language of an originalist during his hearings. Still, conservatives have reason to be optimistic, since a Justice Gorsuch would be freer to express his commitment to jurisprudence as a moral activity. By championing moral reasoning as the basis for the law, Gorsuch offers the Right a chance to return real, epistemologically rigorous conservatism to the high court.