Originalism

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United States Supreme Court nominee Neil Gorsuch is said to be an originalist, a jurist who believes in sticking to the intent of the founding fathers when it comes to ruling on constitutional law. Constitutional expert Robert McWhirter will talk about what it means to be an originalist.

TED SIMONS: U.S. SUPREME COURT NOMINEE NEIL GORSUCH IS SAID TO BE AN ORIGINALIST AND A TEXTUALIST. GOOD TO SEE YOU AGAIN.
ROBERT MCWHRITER: PLEASURE.
TED SIMONS: WHAT IS ORIGINALISM.

ROBERT MCWHRITER: ORIGINALISM IS A DOCTRINE, THE THEORY OF CONSTITUTIONAL CONSTRUCTION THAT SAYS THAT YOU MUST READ THE CONSTITUTION AS IT WAS ORIGINALLY INTENDED TO BE READ. SO YOU HAVE TO GO INTO THE INTENT OF THE FRAMERS OF THE CONSTITUTION TO APPLY ANY CONSTITUTIONAL PROVISION TO A MODERN SITUATION.
AND TEXTUALISM?
ROBERT MCWHRITER: KIND OF A PRECURSOR TO ORIGINALISM. IT'S A LITTLE BIT DIFFERENT. YOU HAVE ALL THESE -- A TEXTUALIST IS SOMEBODY WHO READS WHAT'S WRITTEN REASONABLY AND DOESN'T GO TO THE INTENT. SO TO USE AN EXAMPLE, THE FRAMERS DID, LET'S SAY YOU AND I MAKE A STATUTE THAT SAYS CUTTING PEOPLE IS A CRIME. A TEXTUALIST AND READ THAT AND SAY, IT DOESN'T MATTER IF YOU'RE A SURGEON. THEREFORE, A SURGEON CAN BE CHARGED WITH THAT CRIME. IF WE'RE A TEXTUALIST, WE'RE NOT GOING TO GO BACK TO THE ORIGINAL INTENT. IF I SAY, DO YOU MEAN SURGEON, AND YOU WOULD SAY, NO I DON'T MEAN THAT. A TEXTUALIST WON'T GO BACK AND LOOK AT THAT. JUST SAYS CUTTING PEOPLE IS A CRIME AND THAT'S IT.
TED SIMONS: CAN YOU BE AN ORIGINALIST AND A TEXTUALIST?
ROBERT MCWHRITER: ANTON SCALIA SEEMED TO THINK THAT HE COULD. SCALIA WOULD SAY WHAT I JUST DESCRIBED AS A TEXTUALIST REALLY ISN'T A TEXTUALIST, IT'S A STRICT CONSTRUCTUALIST AND THOSE PEOPLE ARE BAD. WHAT SCALIA WOULD SAY, YOU TAKE THE TEXT, YOU READ IT REASONABLY. BUT YOU HAVE TO GO TO THE ORIGINAL INTENT AND THAT HOW HE MIXES ORIGINALISM AND TEXTUALISM TOGETHER.
TED SIMONS: SO WE ARE TALKING ABOUT A DEAD -- SCALIA ACTUALLY USED THE WORD DEAD, ALTHOUGH HE USED ENDURING DIDN'T HE?
ROBERT MCWHRITER: HE SAID MY CONSTITUTION IS DEAD, BUT WHAT I MEAN BY THAT IS ENDURING.
TED SIMONS: HOW DO WE KNOW THE INTENT OF THE FOUNDING FATHERS?
ROBERT MCWHRITER: THAT IS A HUGE PROBLEM. THAT'S ONE OF THE ISSUES. ORIGINALLY -- I CONSIDER MYSELF AN ORIGINALIST. BUT THE THEORY HAS REAL PROBLEMS IF YOU ADHERE TO IT TOO STRICTLY. I THINK YOU SHOULD START WITH WHAT YOU KNOW OF THEIR INTENT AND APPLY IT IN A WAY THAT MAKES IT RELEVANT. SOME ORIGINALISTS WON'T DO THAT. LOOK, HERE'S THE PROBLEM. YOU HAVE TO TAKE THE ORIGINAL INTENT OF EVERY SUBSEQUENT AMENDMENT. SO AN EXAMPLE, THE ORIGINAL INTENT OF THE FRAMERS OF THE CONSTITUTION WERE THAT WOMEN DIDN'T VOTE. THE ORIGINAL INTENT OF THE 19th AMENDMENT FRAMERS ARE THEY THAT ARE, THAT THEY DO. SO IT'S THEIR ORIGINAL INTENT THAT MATTERS, NOT THE GUYS BACK IN 1789 THAT MATTERS. SO RIGHT AWAY, YOU'VE GOT A WHOLE DIFFERENT THING. WHEN YOU GO TO THE ORIGINAL INTENT OF THE FRAMERS OF 13th, 14th, AND 15th AMENDMENTS, IT ALL STARTS TO BECOME MUCH MORE COMPLICATED. THAT'S A BRANCH OF ORIGINALISM CALLED PROGRESSIVE ORIGINALISM.
TED SIMONS: HOLY SMOKES. I'M TRYING TO GET TO TWO OF THEM HERE.
ROBERT MCWHRITER: LET'S REALIZE WHAT'S GOING ON HERE. PERHAPS BORN OF A BIT OF CYNICISM. WHAT THIS IS ABOUT ARE LITTLE HOOKS THAT POLITICIANS CAN USE TO COMPLAIN ABOUT GIVEN DECISIONS. YOU NEVER HEAR SOMEBODY WHO'S HAPPY WITH A COURT OPINION SAYING, OH, THOSE JUDGES WERE ACTIVISTS. OR THEY'RE NOT ADHERING TO THE TRUE MEANING OF THE CONSTITUTION. ONLY WHEN A DECISION DOESN'T GO THEIR WAY THAT THEY START SAYING THAT. AND LAW PROFESSORS WHO WRITE LAW REVIEW ARTICLES TO GET TENURE. SO THEY SPIN THIS OUT. WHEN YOU THINK ABOUT IT, HOW DOES THIS REALLY ADHERE TO A JUDICIAL PHILOSOPHY?
TED SIMONS: IT SOUNDS AS THOUGH, GOING BACK TO SCALIA, HE THOUGHT THAT POLICY CHANGES SHOULD BE THROUGH THE DEMOCRATIC PROCESS AND NOT BY WAY OF AN ELECTED COURT.
ROBERT MCWHRITER: AND THAT'S A PERFECTLY VALID CONSTITUTIONAL PRINCIPLE. THE TROUBLE IS -- HERE'S ANOTHER THING. LET'S JUST GET INTO A LITTLE BIT OF ARISTOTLE. THE FRAMERS READ ARISTOTLE. IF YOU WANT TO UNDERSTAND THE STRUCTURE OF OUR CONSTITUTION YOU HAVE TO READ ARISTOTLE. ARISTOTLE SAID WHAT A JUDGE MUST SEEK TO DO IS PUT HIMSELF INTO THE POSITION OF A LEGISLATOR HAS THE LEGISLATOR HAD THE FACTS BEFORE HIM. YOU CAN MAKE AN ARGUMENT THAT THE ORIGINAL INTENT OF THE FRAMERS OF THE CONSTITUTION WAS NOT ORIGINALIST. IN OTHER WORDS, THEY THOUGHT THAT THIS DOCUMENT SHOULD HAVE A SENSE OF EVOLVING. REPRESENTATIVE LIVERMORE TALKING DURING THE PASSING OF THE 8th AMENDMENT SAID, WELL, YOU KNOW, WE HAVE THIS CRUEL, UNUSUAL PUNISHMENT IN THE FUTURE, THERE MAY BE BETTER WAYS TO PUNISH PEOPLE RATHER THAN FLOGGING THEM AND CUTTING OFF THEIR NOSES AND EARS. SO REPRESENTATIVE LIVERMORE AND THE ONES WHO PASSED THE 8th AMENDMENT I WOULD ARGUE ARE CONSIDERED THIS, OUR STANDARDS ARE GOING TO EVOLVE. THAT MEANS YOU HAVE TO BELIEVE IT'S AN EVOLVING DOCUMENT AND THAT HAS BEEN ARTICULATED AS EVOLVING STANDARDS OF DECENCY. I THINK THAT'S AN ORIGINALIST ORIGINALMENT FOR SOMEONE WHO SAY IS NOT ORIGINALIST.
TED SIMONS: ALSO THE IDEA THAT YOU HAVE TO WAIT FOR LEGISLATIVE ACTION BEFORE YOU'RE ALLOWED A FUNDAMENTAL RIGHT?
ROBERT MCWHRITER: AND THE OTHER THING TOO, IF WE'RE A SURGEON WHO JUST TRIED TO SAVE SOMEBODY BY CUTTING THEM OPEN IS AMENABLE TO PROSECUTION, DO WE REALLY NEED TO WAIT FOR THE LEGISLATURE TO COME IN AND PASS AN AMENDMENT FOR THE STATUTE.
TED SIMONS: AND ALSO WHEN THEN CAN, SHOULD COURTS STRIKE DOWN LAWS? I MEAN, WHEN DO YOU DO IT?
ROBERT MCWHRITER: WELL, I THINK YOU HAVE TO DO IT TWO WAYS. I DID SAY I AM AN ORIGINALIST. I THINK YOU START WITH WHAT IS THE ORIGINAL INTENT. AND WORK FROM THERE AND THEN SEE HOW THE LAW HAS DEVELOPED. IT HAS DEVELOPED PREDICTABLY IN A LOT OF AREAS.
TED SIMONS: UH-HUH.
ROBERT MCWHRITER: THE DECISION ON SAME-SEX MARRIAGE IS A PREDICTABLE PROGRESSION. PEOPLE MAY NOT LIKE THE WAY THE OPINION CAME OUT, BUT IT WAS NOT SOMETHING TOTALLY OUT OF THIN AIR. IT WAS A PREDICTABLE PROGRESSION OF LAW AND COURT DECISIONS AND STATUTES THAT HAD BEEN GOING ON FOR SOME TIME. IF YOU START FROM THE ORIGINAL PREMISE THAT ALL MEN ARE CREATED EQUAL, WE HAVE EQUAL RIGHTS, THEN YOU CAN SEE THAT PROGRESSION. NOW YOU MAY DISAGREE WITH THAT ON A POLICY LEVEL OR WHATEVER, BUT I DON'T THINK YOU HAVE A PARTICULARLY GOOD ARGUMENT THAT SAYS, WELL, JOHN HANCOCK NEVER WOULD HAVE WANTED SAME-SEX MARRIAGE. I DON'T THINK THAT THAT IS A GOOD ARGUMENT ON A CONSTITUTIONAL LEVEL.

TED SIMONS: SO IS -- YOUR PARTICULAR BRAND OF ORIGINALISM, BUT LET'S SAY THE SCALIA AND THE GORSUCH BRAND, IS THAT NOW MAINSTREAM THOUGHT?
ROBERT MCWHRITER: WELL, IF GORSUCH GETS ON, HE WILL BE THE SECOND JUSTICE ON THE CURRENT COURT WHO IS AN ORIGINALIST. THE OTHER BEING CLARENCE THOMAS. I HAVE FOUND THE JUSTICES WHO CLAIM TO BE ORIGINALISTS CAN BE NOT VERY CONSISTENT. I'LL GIVE THE EXAMPLE OF CLARENCE THOMAS. IF YOU LOOK AT HIS OPINIONS AGAINST AFFIRMATIVE ACTION, HE NEVER USES AN ORIGINALIST METHODOLOGY. HE DOESN'T LIKE AFFIRMATIVE ACTION. HE'S THE MOST VOCAL OPPONENT OF AFFIRMATIVE ACTION ON THE COURT. IF YOU GO TO THE ORIGINAL INTENT, AFFIRMATIVE ACTION WAS SMALL POTATOES TO THESE PEOPLE. THEY WERE INTO SENDING TROOPS TO THE SOUTH TO BETTER THE LIVES OF BLACK PEOPLE DIRECTLY. AFFIRMATIVE ACTION COMPARED TO THAT IS NOT VERY GREAT AT ALL. AND WHEN CLARENCE THOMAS TALKING ABOUT IN OPPOSITION TO AFFIRMATIVE ACTION, IT'S POLICY TYPE --
TED SIMONS: INTERESTING.
ROBERT MCWHRITER: IN FISHER VERSUS TEXAS, YOU HAVE SOTOMAYOR AND THOMAS GOING AT IT, THAT'S SUPPOSED TO BE FOR THE LEGISLATURE.
A TED SIMONS: LL RIGHT. I THINK GORSUCH SAID THE JOB OF A JUDGE IS TO LOOK BACKWARD. YOUR BOOK?
ROBERT MCWHRITER: YOU CAN STILL BUY IT ON AMAZON.
TED SIMONS: GOOD TO HAVE YOU.

Constitutional expert Robert McWhirter

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