As I listened to excerpts of Judge Neil Gorsuch’s U.S. Supreme Court judicial confirmation hearings today, the urge to scream at members of the Judiciary Committee to do their jobs and question the double-speak and supposedly gotcha answers that oozed out of Gorsuch’s mouth.
Gorsuch identifies as a Constitutional originalist, thinking that judges should interpret the Constitution literally, as the Founders intended it at the time. “Judges should “apply 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,” he once told Case Western Reserve University Law School students, according to a CNN report.
There are so many questions that beg to be asked regarding that position.
One committee member, Sen. Dianne Feinstein, tiptoed toward a key question when she expressed concern about his position of focusing backward, not forward, in Constitutional interpretation, particularly regarding women’s rights. But she fell silent after his assurance that “no one is looking to return us to horse and buggy days.”
Say what? Constitutional originalist Gorsuch thinks the Constitution should be interpreted as the Founders intended, as they wrote it back in the day, according to his hearings testimony. Yet, he says that in doing so, the country won’t revert to “horse-and-buggy days.”
How so, when those who wrote it intended for only Americans like them — white male property owners — to vote.
By Gorsuch’s standards, women wouldn’t be allowed to vote. The Constitutional amendment guaranteeing women the right to vote wasn’t written by the Founders. They had no intent when it came to women voting. The Founders were all long-dead by the time the 19th Amendment, prohibiting the denial of the right to vote based on sex was presented to Congress and the States.
Same with African-Americans.
In fact, not only would slavery still be Constitutionally allowed, “enslaved blacks in a state would be counted as three-fifths of the number of white inhabitants of that state.”
Yes, both of those deplorable aspects of the U.S. Constitution were written and, most likely intended, by the Founders.
According to Gorsuch’s originalist interpretation philosophy, he would strike down laws based on the 14th Equal Protection Amendment, since that wasn’t written by the Founders, thus not their intent.
He would also hold that the federal income tax is unconstitutional, since the 16th Amendment, which permits Congress to levy such a tax “without apportioning it among the states or basing it on the United States Census” wasn’t presented to Congress or the states for ratification until 1909.
Gorsuch, whose judicial track record is to favor businesses over individuals, was noncommittal in the committee hearing today. But why? What did the Founders have to say in the Constitution about corporations being persons? Nothing. So what do SCOTUS justices of Gorsuch’s ilk base their interpret of the Constitution on when they said corporations are persons?
That goes to another area in which Gorsuch’s answers in his hearing was like using cheap perfume to cover up a stench.
Take making laws and interpret their Constitutionality, for instance.
It’s Congress’s job to make laws, Gorsuch said, and the Court’s job is to put them to a Constitutional test. If Congress doesn’t like the Court’s ruling on a law, he said, give the Court a law it will affirm. You, Congress, makes the law. The Court doesn’t.
What the heck does he think the Court did in the Citizens United case?
Congress didn’t pass a law saying corporations are people. The Court simply declared that was the law. The question before the Court in that case wasn’t if corporations were persons. The Court majority blatantly took it upon itself to rule that they are. There was no foundational law for that SCOTUS ruling.
Why has no one put the Constitutional test of what a person actually is to the Court. Where’s the Citizens United Trump to ask, where’s the birth certificate? What attributes, features or biological components of a corporation constitutes personhood?
Judges, Gorsuch posits, aren’t politicians in robes. They shed their political views when they don the robe. They are independent of political pressure and ideology and are completely partial.
If that were true, why does the Court notoriously split along political, religious and ideological lines?
If what Gorsuch says were true, the Court would still have split decisions, but they wouldn’t reflect so strongly and predictably the political extremes that they do. The splits would reflect truly independent and impartial judges.
Honestly! 