Several Senate Democrats were unified in deriding originalism as a judicial philosophy during Monday’s Senate Judiciary Committee hearing on the nomination of Judge Neil Gorsuch to Supreme Court justiceship
Sen. Dianne Feinstein (D-Calif.), ranking Democrat of the committee, described originalism as a “very troubling” jurisprudential approach. The Framers, she added, intended for the Constitution to be continuously reinterpreted over time (emphasis added):
“Judge Gorsuch has also stated that he believes judges should look to the original public meaning of the Constitution when they decide what a provision of the Constitution means. This is personal, but I find this originalist judicial philosophy to be really troubling. In essence, it means that judges and courts should evaluate our constitutional rights and privileges as they were understood in 1789. However, to do so would so would not only ignore the intent of the Framers, that the Constitution would be a framework on which to build, but it severely limits the genius of what our Constitution upholds.”
At no point did Feinstein articulate constitutionally codified rights as timeless. Also ignored were legal options for change via constitutional amendment or the passage of constitutionally-compatible legislation.
Feinstein implied that slavery was abolished as a result of judicial perceptions of the Constitution as a “living document.” She made no mention of the Civil War, preceding and subsequent abolitionist movements or the Reconstruction Amendments. The Supreme Court, she continued, should engage in ongoing constitutional reinterpretation in accordance with contemporary perceptions of Supreme Court justices.
Governmentally sanctioned and enforced racial discrimination (i.e. Jim Crow), and the burning of women accused of witchcraft (i.e. Salem witch trials) would still be ongoing, suggested Feinstein, in the absence of fluid constitutional reinterpretation (emphases added):
“I firmly believe the American Constitution is a living document intended to evolve as our country evolves. In 1789, the population of the United States was under four million. Today, we’re 325 million and growing. At the time of our founding, African-Americans were enslaved. It was not so long after women had been burned at the stake for witchcraft, and the idea of an automobile, let alone the internet, was unfathomable. In fact, if we were to dogmatically adhere to originalist interpretations, then we would still have segregated schools, and bans on interracial marriage. Women wouldn’t be entitled to equal protection under the law, and government discrimination against LGBT Americans would be permitted.
So I am concerned when I hear that Judge Gorsuch is an originalist and a strict constructionist.”
Watch part of Feinstein’s monologue below.
Sen. Patrick Leahy (D-Vt.) described originalism as a judicial philosophy “outside the mainstream” or contemporary jurisprudence (emphasis added):
“Judge Gorsuch appears to have a comprehensive originalist philosophy. It’s the approach taken by jurists such as Justice Scalia, Justice Thomas, or former Judge Bork. While it has gained some popularity within conservative circles, originalism, I believe, remains outside the mainstream of modern constitutional jurisprudence. It’s been twenty-five years since an originalist has been nominated to the Supreme Court. Given what we’ve seen from Justice Scalia and Justice Thomas, and Judge Gorsuch’s own record, I worry that it goes beyond being a philosophy and becomes an agenda.”
Watch part of Leahy’s monologue below.
Feinstein, Leahy, and other Senate Democrats pushed Marxist themes of class warfare thoughout their monologues, framing the Supreme Court’s primary role as being an avenue through which wealthy, powerful and elite individuals are to be punished for oppressing the proletariat.
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