Why can’t United States senators, law-school deans, and journalists bother to understand or fairly characterize the legal doctrines they so vigorously oppose? This morning, Senator Dianne Feinstein — fresh from lecturing Neil Gorsuch on the novel constitutional concept of “super precedent” — purported to attack Judge Gorsuch’s legal philosophy by reading a question from a law-school dean:
You are a self-professed originalist in your approach to constitutional interpretation. For example, you wrote, and I quote, “Judges should instead strive, if humanly and so imperfectly to imply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.” Now, do you agree with Justice Scalia’s statements that originalism means that there is no protection for women or gays and lesbians under the equal-protection law because this was not the intent or the understanding of those who drafted the 14th Amendment in 1868?
Note what happened here. Feinstein’s dean went straight from a quote to a straw man, fundamentally mischaracterizing Scalia and originalist jurisprudence in one consequential sentence. First, Scalia’s consistent position wasn’t that the equal-protection clause offered “no protection” to women or gays, but rather that it did not offer special or extraordinary protection. For example, here he was dissenting in Romer v. Evans, a decision that struck down a Colorado constitutional amendment prohibiting local governments from outlawing discrimination based on sexual orientation:
The only denial of equal treatment it contends homosexuals have suffered is this: They may not obtain preferential treatment without amending the state constitution. That is to say, the principle underlying the Court’s opinion is that one who is accorded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws.
And second, when discussing “originalism,” for the vast majority of originalists, the key isn’t “original intent” but rather a concept called “original public meaning.” Once again, here’s Scalia dissenting from an overreaching majority — this time in U.S. v. Virginia, a case requiring a public all-male military academy to open its doors to female cadets:
The Citadel has existed as a state funded school of South Carolina since 1842. And all the federal military colleges — West Point, the Naval Academy at Annapolis, and even the Air Force Academy, which was not established until 1954 — admitted only males for most of their history. Their admission of women in 1976 (upon which the Court today relies), came not by court decree, but because the people, through their elected representatives, decreed a change. . . . In other words, the tradition of having government funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics smuggled into law.
In other words, when the equal-protection clause was enacted, what were the words understood to mean? Were they understood to sweep away, say, restrictions on women in combat? Were they understood to mean that legislatures couldn’t enact laws that prohibit certain sexual practices? Drafters create a text, and that text has an original, understood meaning. That, in a nutshell is what “originalism” means. Or, if you prefer a master class from a far more esteemed source, here is Judge Gorsuch’s response to Senator Feinstein:
— Shoshana Weissmann, Sloth Committee Chair (@senatorshoshana) March 22, 2017
If you don’t have two minutes to watch, the core of his explanation is this:
It would be a mistake to suggest that originalism turns on the secret intentions of the drafters of the language of the law. [The] point of originalism, textualism, whatever label you want to put on it — what a good judge always strives to do and what we all do — is [to] understand what the words on the page mean, not import words that come from us. . . . It matters not that some of the drafters of the 14th Amendment were racists, because they were, or sexists, because they were. The law they drafted promises equal protection of the laws. That’s what they wrote. And those — the original meaning of those words, John Marshall Harlan captured in his dissent in [Plessy v. Ferguson], that equal protection of the laws does not mean separate in advancing one particular race or gender. It means equal.
The essence of originalism is answering this core question: What do the words on the page mean? It is not about making them mean what the judge wants them to mean. It is not about twisting, expanding, or redefining them to adjust their meaning. And to determine what the words mean, especially if the meaning is controversial, we must inquire into the original understanding of that meaning.
Here’s a dirty little secret of the federal bench: This is how the vast majority of cases are decided, regardless of the judge’s ideology. Indeed, in court opinion after court opinion you’ll find even the most liberal jurists referring back to the passage of the legislation at issue to understand its meaning.
This standard practice breaks down, however, at the cutting edge of left-wing ideology — especially as it pertains to the sexual revolution. Feinstein’s very next response to Gorsuch gave the game away. Rather than address what the words of the 14th Amendment are supposed to mean, she stampeded straight to her favored legal outcome, abortion rights, and talked about how she heard that women in college used to “pass the plate” to raise money to send friends to Mexico for abortions. This, of course, has nothing to do with the meaning of the words in the Constitution.
The lesson from the legal Left — a lesson I was very clearly taught by multiple professors in law school — is that when a case is of sufficiently critical social importance, standard rules of legal interpretation give way to the greater demands of social justice. Here’s how one judge put it to me in his chambers: “You should always know the law, and you should always know what’s right. Do what’s right.” This would be an appealing notion if judges possessed godlike powers of judgment, but they don’t; they’re flawed like every other human. So it’s an appalling abuse of power.
To smear Neil Gorsuch, the Left has created and attacked a straw man. Judge Gorsuch does not believe for example, that the equal-protection clause provides “no protection” to any class or category of American. Like Justice Scalia, one of his mentors, knew, he knows that all citizens are entitled to the considerable and invaluable protections outlined in the words of the 14th Amendment itself. If the Left wants to enhance or diminish those protections — or to create new rights and privileges entirely — it should win elections and pass laws, rather than looking to the court to pervert the Constitution.