This is an archived article that was published on sltrib.com in 2017, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
We hear that President Donald Trump's nominee for the Supreme Court, Neil Gorsuch, is a constitutional originalist. That is, he uses a historically novel point of view to constrict the Constitution of the United States.
Antonin Scalia popularized this unhappy notion that the Constitution is a dead, inflexible document. Although the Founding Fathers adopted our Constitution to perpetually serve a promising new country in a new world, the originalists assert that only people living in 1789 could really know what the words of the Constitution should mean. According to the originalists, the founders required that their accidentally held educational, cultural, religious, ethnic and male prejudices were meant to control constitutional interpretation for all time. Even as the telephone, airplanes, genetics, space travel and the internet were to develop later, they already had taken that into account.
Neither the Constitution, nor any of the framers, nor Alexander Hamilton, James Madison, George Washington, Thomas Jefferson nor any other pillars of early America authorized originalist constitutional interpretation. Indeed, the Constitution itself belies the authenticity of originalism's premise that the founders wanted an inflexible fundamental law. If the founders of America were as sedentary as today's originalists believe, then we would still be subject to the unwritten British constitution. According to their logic, slavery could still be the law of the land.
Luckily, the founders of our country were revolutionaries. They responded to a new era in a new world. In the most productive wave of the Enlightenment, they saw political ideas and rights unfolding and captured such nascent human progress in the structure and aspirations of the constitution. And then they froze it? They called it perfect? I don't think so.
Judge Gorsuch is a very bright person with excellent education and career experience. I am sure he can write really well. However reassuring that is, it is far more important that he not bring an unqualified, atrophied view of the Constitution to the Supreme Court. Citizens of the 21st century deserve a jurist who can keep up. None of us should be fooled to think originalism is a good thing.
Robert C. Steiner
Salt Lake City