Thoughts On Originalism In The Age Of Gorsuch

Today marked the fourth day of hearings on the nomination of Tenth Circuit Judge Neil Gorsuch to become a justice of the Supreme Court.  After three days of questioning Judge Gorsuch, the Senate Judiciary Committee turned its attention to testimony from a number of individuals, including Law Professor William Marshall of the University of North Carolina.

Professor Marshall provided a cogent analysis of the flaws of originalism as a theory of constitutional interpretation. Because Judge Gorsuch is an avowed originalist, Professor Marshall’s testimony was relevant.  Here’s how he began his testimony:

The Air Force is unconstitutional. Brown v. Board of Education, 348 U.S. 886 (1954), was incorrectly decided. The Equal Protection Clause does not apply to women. The First Amendment does not protect speech on the internet or prevent persons from being forced to salute the flag when it conflicts with their conscientious or religious principles. The Constitution does not require one person/one vote. There is no freedom from government intrusion into such deeply personal decisions as to whether or not to have a child. There is no right to direct the raising and educating of one’s own children. The Fifth Amendment does not require the police to inform persons charged with crimes that they have a right to counsel. The federal government may discriminate on the basis of race and ethnicity without constitutional constraint.

These are just some of the results to which a strict adherence to “originalism” would lead. The vacancy created by the death of Justice Antonin Scalia, the Court’s most prominent proponent of originalism, and the subsequent nomination of Judge Neil Gorsuch to fill that position, has once again brought the theory of “originalism” into the spotlight. It is therefore appropriate to reexamine the validity and legitimacy of originalism as a governing mode of constitutional interpretation. I will address that issue in the remarks that follow.

You can read Professor Marshall’s full written testimony here.