Gorsuch Nomination: Potentially the Best News for Originalism since 1987

With his nomination of Judge Neil Gorsuch President Trump may have done more for originalism than any President since Ronald Reagan. Unfortunately, a few days later, he called into question his own commitment to the rule of law by calling an Article III judge a “so-called judge.”   The juxtaposition of the excellent and the reckless continues what I have argued is the essential pattern of his Presidency:  He makes appointments (except in the trade area) that  on balance advance classical liberalism and limited government, but makes remarks that are foolish with the potential to undermine much of the good his appointments will do.

First, the good news: Gorsuch is a fine nomination, a worthy successor to Justice Scalia in the three ways that count. First, he is an originalist. That matters, because the last two Republican appointees, Chief Justice John Roberts and Justice Samuel Alito, have not shown themselves to be either declared or relatively consistent originalists. And it is originalism tha holds the most promise for maintaining a beneficent Constitution and a constrained judiciary.

Second, as I argued at the City Journal, Gorsuch is a superb writer. To be powerful and influential  with the public, as Scalia was, a justice needs to convey his ideas clearly and pungently. Justice Clarence Thomas, for all his other fine qualities as justice, is not as good as Scalia was at this task.  Gorsuch is in the top 2 percent of all federal judges in this ability.

Third, to be influential with academics, justices must be at home in the world of legal scholarship and theory. Gorsuch has himself written an excellent university press book on assisted suicide. His opinions often engage with the latest law review articles as well as the latest case law on a subject. This academic breadth matters more than one might think.   Even if the Supreme Court makes correct decisions today,  they will  last only if our constutional culture becomes an originalist culture, as it was for the century before progressivism. Originalism has been ascending in academic respectability for the last two decades, in no small part thanks to Antonin Scalia. Another justice who takes the academic case for originalism seriously  will provide fuel for continued ascent.

And Gorsuch’s openness to legal scholarship will create a better dialectic between the Court and the academy. That kind of exchange transformed antitrust law. With an appointment or two more like that Gorsuch, it could change constitutional law.

But President Trump’s incautious comments endanger the happy prospects created by his very sound nomination.  Perhaps the latest one was just  clumsy way of expressing disagreement with the ruling rather than attacking the legitimacy of a judge. But his opponents will exploit their ambiguity. They will depress his popular support and make it harder to confirm Gorsuch and future appointees.  Silence is an underrated political virtue.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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  1. Paul Binotto says

    The author makes some excellent arguments, however, if Trump has proven anything up to this point, it is that his actions cannot be judged by conventional wisdom, so I am not as concerned about his more regrettable off-the-cuff comments as the essay cautions and predicts..

  2. mrboxty says

    I’m tired of these academics criticizing the man doing the heavy lifting in the Republican Party. You conservative academics lost 90% or more of academia to the progressive left, yet you still have the nerve to criticize how Trump, an outsider, is finally fighting back? When you can move the needle to the right in your own industry then maybe you’ll be worthy to criticize Trump.

  3. gabe says

    “[1}They will depress his popular support and [2}make it harder to confirm Gorsuch and future appointees. [3}Silence is an underrated political virtue.”

    #1 – I suspect that it may ONLY depress his support among academics and those already predisposed to find fault with any and every thing The Trumpster says. I also suspect that this comment will resonate with all those, not so academically credentialed, who like their august academic counterparts, also find fault with a Judicial mechanism that has seen fit to work their way upon the citizenry. I, for one, did not mind it at all and I would submit that I am far more familiar with this particular vernacular (Queens, NYC) than is the essayist.

    #2 – Regrettably, this may very well prove to be the case, especially if many on the right also seize the opportunity (and let us be frank here, there will be many more as (we) New Yawkers are prone to occasional distemper) to lambast / lampoon The Trumpster. It would, to my mind, be preferable to highlight the wisdom of the choice AND to encourage further excellence in Judicial nominations than to find fault with the pedestrian expressions of a man who quite frankly is under assault ( witness, the EPA employees deploying a secure encryption system to work their will against The Trumpster’s agenda).

    3# – Silence is, *at alternating times*, an underrated political virtue. All too often the Right has remained silent when it ought to have protested vehemently against the slanders, libels and misrepresentations alleged against them. Silence is also what has wrought The Trumpster. Too many among the citizenry were left to believe that they had no voice and that only the loud obnoxious and vexatious thundering of the Left was to be allowed access to the market square. Now comes The Trumpster who answers back. It reminds me of a saying I used to employ: “Hey, I don’t bite; BUT I do bite back.”

    • gabe says

      Oops:

      Silence is, *at alternating times*, an underrated political virtue. –
      SHOULD READ: Silence is, *at alternating times*, both an underrated [and overrated] political virtue. –

      As to the *so-called* judge, there is this:

      http://www.powerlineblog.com/archives/2017/02/a-strange-ruling-from-a-strange-judge.php

      And also this: Judge Robart is being hailed in the local Seattle scandal sheet for his work in assisting refugees; Why did this *so-called* judge not recuse himself from this matter.
      Oh, that’s right, jurists on the left do not have to recuse themselves as they are by definition beyond reproach. Recall, if you will, Justice Kagan’s refusal to recuse herself from the Obamacare deliberations. Gee, that worked out well, didn’t it – another in a long line of *impartial*, or is it *so-called* judges doing their duty!

        • Paul Binotto says

          Mr. Gabe, you can always be counted on to cut straight to the bone of the matter!

          Of course, Robart need not provide a detailed reasoning for his ruling, so I will provide one – the Soggy Proggys needed an issue to lambast their way through the Sunday Political/News Roundtables; notice how these types of rulings always seem to occur late in the day on Friday?

          The Constitution grants the President a wide discretion in matters of national security, so to my non-lawyer mind, Judge Robart is just another toothless tyrant doing the partisan dirty-work come to be so commonly prevalent – who would benefit from a little more of the Trumpsters N Y justice. Trump, when he says, “so-called judge”, only gives voice to the hundreds of thousands other Americans who witness with disgust Judges like Robart misuse their bench for political purposes unabashedly. Judge Robarts knows he has only created a smoke and mirror legal ruling and I predict he will ultimately lift the stay.

          Also, how can a Federal Judge in Washington issue a ruling to apply Nationally when moments before another Federal Judge of equal jurisdictional level ruled oppositely? In the least, you would think Robarts ruling has no weight in the Boston judge’s district?

          The Supreme Court hopefully will take up the issue in instance of opposing district rulings on the same legal issue and I hope they (even equally split) will reverse Robart, with not a little indignation.

        • Paul Binotto says

          Dear Prof. Frisk,

          Thank you for your comment and point taken. I respect your judgement, and I apologize if my characterization of Judge Robart was unfair; I can see how it may be perceived to be so. Perhaps I did allow my frustration with what appears to me to be an all too frequent Progressive tactic of “Judge Shopping” and (the subsequent appearance anyway) of politically motivated judicial pronouncements that seem to use very thinly teased legal reasoning towards affecting what appears to pre-determined outcomes in order to erect barriers (pun not intended) against an opposition purely for partisan purposes. I did not mean Judge Robart personally or professionally any disrespect; I suppose he just happened to be the closest target in my actual desire to take aim at the emergence of a broader adverse judicial development.

          Too, my appreciation for alliteration is to a fault, and sometimes it clouds my judgement that it may not be similarly appreciated by all..

          Please know, still, my criticism of Judge Robart was intended to be, quite toothless.

          Regards,
          Paul Binotto

  4. David B Frisk says

    A “better dialectic between the Court and the academy” may have “transformed antitrust law,” but it is unlikely to transform First Amendment, Fourteenth Amendment, or Commerce Clause jurisprudence. Far more than the atmospherics that are so prized in this essay (and by many other conservative intellectuals, in regard to the legal world), what we urgently need is an additional vote on the Court. And that depends on the retirement of Kennedy or one of the leftist justices. Even if this occurs, confirming a serious conservative to fill that vacancy will be hard. Gorsuch may be the best thing since sliced bread, but he can accomplish little politically on his own. His confirmation would simply give the deciding vote back to Kennedy. A younger Scalia is better than an old Scalia, especially since he’s undoubtedly more temperate in style. But let’s not kid ourselves about a Justice Gorsuch making a great difference.

  5. jdlinton says

    I agree with all but your last paragraph. It is absolutely true that the court system in this country has become corrupt and disconnected from its primary obligation to be controlled by law, as this blog site repeatedly points out. It is time for the executive to call this corruption out. The executive owes us nothing less.

  6. says

    If I understand correctly, John McGinnis’s first paragraph implies a congruity between originalism and classical liberalism. I think that originalism is NOT congruent with classical liberalism, for the following reasons:

    1. It seems to me that anybody taking originalism seriously (and not as just a convenient wrapping for a modern-day ideological preference) must grapple with Chief Justice Marshall’s following statement in Marbury v. Madison: “That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected.” That is to say, the meaning of happiness to the Founders is of fundamental importance in assessing their general orientation as they set up new governmental forms.

    2. The above quote from Marshall was referring to the Congressional resolution of May 10 and 15, 1776, which established de facto independence and instructed the colonies to write their original constitutions. This resolution instructed the colonies “to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general.” This resolution was paraphrased or directly quoted in several of the original state constitutions.

    3. The May resolution contains a definition of happiness, written by John Adams, who later as president appointed Marshall to be Chief Justice of the Supreme Court.

    4. This definition of happiness in the May resolution was set in the context of defining the phrase “safety and happiness,” which was a revolutionary-era catch-phrase for the purpose of government. This phrase “safety and happiness,” introduced into 18th-century discourse by Francis Hutcheson and paraphrasing a statement in Cicero’s De legibus, was embraced by both Burlamaqui and Vattel, both of fundamental importance to lawyers among the American revolutionary leaders.

    5. The definition of happiness in the May resolution, hidden in plain sight as part of a clever tautology, was “internal peace, virtue and good order.” VIRTUE was part of the definition of happiness, which means that happiness doesn’t have a Lockean meaning. (Locke made the radical step of REMOVING virtue from his definition of happiness.) This also means that a wide swath of academic scholarship and judicial decisions related to the meaning of happiness is simply wrong and needs to be re-thought.

    6. The three elements in the definition of happiness appear most clearly in Cumberland’s “Treatise of the Laws of Nature.” They also appear, with variant language, in Burlamaqui and in Cicero’s “Tusculan Disputations.” Variants of “internal peace” and “good order” appear in St. Germain’s legal classic “Doctor and Student”; and the association of virtue with happiness (paraphrased by John Adams in his “Thoughts on Government”) appears in an earlier legal classic, Fortescue’s “De laudibus legum angliae” (“In praise of English laws”).

    7. The shared ideology of these writers, widely shared by the American Founders, was that it was the duty of government to promote virtue in the people, with virtue being the essential prerequisite for happiness. (A prominent example of governmental responsibility to promote virtue can be found in the Massachusetts Constitution, written by John Adams, who once again wrote the 1776 definition of happiness and appointed John Marshall to the Supreme Court.)

    8. This is not the view of classical liberalism. I discuss this in “The Declaration of Independence Without Locke” at https://www.academia.edu/29164747/The_Declaration_of_Independence_without_Locke_A_Rebuttal_of_Michael_Zuckerts_Natural_Rights_Republic_

    See also, “Safety and Happiness: The American Revolutionary Standard for Governmental Legitimacy” at https://www.academia.edu/1479704/Safety_and_Happiness_The_American_Revolutionary_Standard_for_Governmental_Legitimacy

    .

    • Paul Binotto says

      Dear Mr. Schmeeckle,

      Your paper titled, “The Declaration of Independence without Locke: A Rebuttal of Michael Zuckert’s The Natural Rights Republic” is an excellent thesis.

      That the Founders, in the framing of The Declaration of Independence, were indeed expressing and affirming their adherence not in the prime to Locke, but as you state, to a “Ciceronian natural law tradition that complemented Christianity as the moral foundation of western civilization”, and as subsequently developed and expressed by Hutcheson, Burlamaqui and Vattel, seems quite persuasively argued and supported.

      I understand the thesis was developed specifically in context to The Declaration of Independence; however, additionally it would seem that the Preamble to Constitution only further supports your argument. In the framing of the Constitution’s Preamble can be found a re-affirmation of the Founder’s continued and persevering confidence in these expressions:

      “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” – Preamble to the United States Constitution.

      It seems hard to deny that the inclusion in the Preamble of such language as, “Perfect Union, (etc.)”, is not a direct expression in language and meaning, an assent to Cicero’s (and, Aristotle’s, and again, as developed and expressed later by Hutcheson, Burlamaqui and Vattel), philosophy of perfecting happiness and of the only rightful duty and legitimacy of any government (union), but that it exist solely as a means toward its (common happiness) ultimate obtainment; a philosophy not only bearing significant influence on the Founders, but one in 1787 as in 1776, still accepted and internalized by them.

      In addition, were the Founders ascribing to Locke’s assertion that man was ever fated in this life, to the endless chasing of his own tail, in the pursuit of the ever elusive and unattainable (self-directed, purely personal) happiness, (indeed, were he ever to catch it under these motives, it would prove to be still the more unhappy), it would seem the structure and inequities and failings existing under the Confederation would be more suited to these ends; nor would they be sufficiently disillusioned in their Great Experiment, as to seek to create a “more perfect union” contradicting of Locke by those decidedly altruistic ends enumerated in the Preamble, and cited as motive for the adoption of a Federal Constitution.

      Finally, even were my above assertions pertaining to the Preamble to be dismissed as over-reaching, it would still seem this mere willingness of the founders to even endeavor “to form a more perfect union”, in choosing to “altar” vs. to (justifiably) “abolish”/scrap the existing, “form of Government” for another, seems evidence enough not only of their enduring commitment to the original principles attested to in The Declaration of Independence (under the influence of Cicero, Hutcheson, Burlamaqui and Vattel), but of a restatement of their enduring common and confident belief, that Happiness remains obtainable.

    • Paul Binotto says

      Very interesting essay and excellent summary of your earlier research and writings on this subject!

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