Throughout the weeks leading up to Judge Neil Gorsuch's Supreme Court confirmation hearings, the Left took aim at his "originalist" view of the law, the philosophy he candidly shares in common with the late Justice Antonin Scalia.
Liberal commentators have presented characteristically obtuse explanations of what "originalism" or "textualism" means. In the hearings, Democratic senators followed suit.
Sen. Amy Klobuchar, D-Minn., asked whether, given the Constitution's use of the word "he" to describe the president, an originalist can believe that a woman could become president. Sen. Dianne Feinstein, D-Calif., the ranking Democrat on the Judiciary Committee, grossly mischaracterized Scalia (who is no longer around to defend himself) in asking a question presumably written for her by a rabid staffer: "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?"
It would, in fact, be the opposite of originalism to interpret the law according to hidden racist or sexist ideas or intentions supposedly in the minds of its drafters. Gorsuch explained this to Feinstein in his reply, one of his most illuminating statements in the entire confirmation process.
"The point of originalism," Gorsuch explained patiently to Feinstein, "is to 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 … I think that guarantee — equal protection of the laws 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."
With this explanation, Gorsuch explained not just originalism, but also the very purpose and importance of written law.
When Draco first inscribed the laws of Athens on wooden tablets, placing them in public where anyone could read them, he transformed the law from a mishmash of oral traditions into a fixed point in every citizen's life. Once the law was in writing, it was accessible to everyone in an identical format, and there could be no doubt what it said. Anyone could refer to and rely upon it. No longer could its contents be subject to the improvisation of whomever was speaking, or be created arbitrarily or out of anger or revenge or personal sympathy.
Draco, like the first codifiers of law in other cultures, made the rule of law possible for the first time by removing any doubt about what the law said.
That advancement and the rule of law itself are now threatened by novel "living-Constitution" theory, which is really just a high-sounding way of suggesting judges can make it up as they go along. Put another way, this theory claims that the meaning of written law can change and change again from what people agreed to in the first place.
But if the concept of law, as law, is to mean anything, the meaning of each individual law has to stay the same. It cannot mean one thing on one occasion and another thing on another occasion if all the circumstances are the same. Without fixed meaning, there is no law.
Laws are adopted and agreed to by people at fixed points in time, based on a common understanding of what they mean. Each generation may change laws or the Constitution based on cultural consensus and democratic action. But for a judge to alter the law's meaning without changing the law itself is something quite different. As Scalia pointed out more than once, it forces everyone, without warning, into agreements and arrangements for which no one ever voted.
As Gorsuch specifically pointed out, nine decades of Jim Crow were made possible because politicians and judges deliberately avoided reading the Fourteenth Amendment as it was written. Its radical textual promise of equality under the law, clearly understood by everyone when it was adopted in 1868, was displaced by an odious informal agreement to ignore the words on the page and uphold the racist cultural consensus that lasted for much of the 20th century.
This is why originalism is not only within the legal mainstream, but is indeed the only approach to the Constitution and existing written statutes that respects the democratic processes that brought them about.
That's also why the Supreme Court needs Gorsuch and more justices like him, who will apply the law in its clear written meaning, the only form in which law is accessible to everyone, rather than creating new law by fiat in search of a desired outcome.