Should “Originalist” Judges be banned from The Supreme Court?
Neil Gorsuch, the veteran federal appellate judge nominated by President Trump to serve on the US Supreme Court, is a proponent of what is called the “originalist” view of the Constitution – which means he would apply its provisions as written, informed by published works that document the intention of the men who wrote and ratified it. Professor David Rudenstine of the Benjamin N. Cardozo School of Law, insists that Gorsuch’s loyalty to the text of the Constitution and the views of its Framers should be considered grounds for disqualification from a place on the Supreme Court.
Originalism, Rudenstine claims, “requires judges to be historians, and judges are not educated to be historians.” The demands of their office make it impossible to carry out adequate research “not only with secondary sources, but with primary sources such as diaries, letters, memoranda and newspapers.” That specious criticism ignores the fact that the defining interpretive documents – such as Madison’s Notes on the Philadelphia Convention, the Federalist Papers, and the Anti-Federalist essays – are by no means obscure. It’s also the case that federal judges employ clerks to do much of the work in researching more complicated matters of history.
As is usually the case with critiques of this kind, Rudenstine’s real objection is that the Constitution itself is outmoded because its provisions have been ignored by people sworn to uphold the document. Originalism doesn’t deal with presidential usurpation of congressional war powers, or address what he calls “unenumerated rights” that are now regarded as “fundamental” – meaning, inevitably, abortion and same-sex marriage.