The Corner

Law & the Courts

Gorsuch: ‘A Mistake to Say That Originalism Turns on the Secret Intentions of the Drafters’

This morning at Neil Gorsuch’s confirmation hearing, Senator Dianne Feinstein asked whether originalist ideas conflict with the notion of equal protection under the law. Not only did Gorsuch address the text of the 14th Amendment directly, he eloquently described the way that an originalist interpretation of that amendment is the best guarantee of justice:

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 I think we all do — is strive to understand what the words on the page mean. Not import words that come from us, but apply what you, the people’s representative, the lawmakers, have done. And so when it comes to equal protection of the law, for example, it matters not a whit 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 to all persons. That’s what they wrote. And the original meaning of those words John Marshall Harlan captured in his dissent in Plessy. An equal protection of the laws doesn’t mean separate in advancing one particular race or gender — it means “equal.” And as I said yesterday I think that guarantee — equal protection of the law’s guarantee in the 14th Amendment, that it took a civil war for this country to win – is maybe the most radical guarantee in all of the constitution, and maybe in all of human history. It’s a fantastic thing, and that’s why it is chiseled in Vermont marble above the entrance to the Supreme Court of the United States.

Critics, such as Feinstein herself, have accused Gorsuch of avoiding substantive answers during this confirmation, because he has refused to answer blatantly political questions. This clear and erudite explanation of his judicial philosophy is the best refutation of that charge.

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