“Marge, just about everything is a sin. Y'ever sat down and read this thing? Technically we're not supposed to go to the bathroom.” -Rev Lovejoy
In the run-up to Neil Gorsuch’s confirmation vote for the Supreme Court you will hear a lot of talk about Textualism, Originalism, Strict Constructionism and other terms conservatives use to showcase their judicial philosophy and respect for the Constitution. Here is the most important thing to remember: these terms all describe an entirely made-up concept; a hollow conceit whose sole function is allowing the GOP to stake a false claim to the moral high ground.
I should qualify my statement. There are, of course, technical meanings to these terms. But the way they are thrown around by conservative commentators they are nothing but empty slogans, the lyrics to their judicial fight song.
Their opponents are liberal “activist judges” who “legislate from the bench”. To their credit, the vast majority of conservatives really do seem to believe what they are saying; which is fascinating, for two reasons. The first is the rank hypocrisy. One can find innumerable examples of conservative justices “legislating from the bench”. In fact conservative justices are more likely than liberal ones to contravene the will of elected legislatures.
The second, more important, reason is that it is literally impossible for any justice to follow this philosophy. Whether or not they vote to overturn legislatures, nobody - and I mean nobody - is actually a strict constructionist in any meaningful sense.
Let’s start with the hypocrisy. Conservative absolutely love talking about how much they revere the Constitution. It’s not uncommon to hear them talk about it as a “divinely inspired” document. Its words are set in stone. We have to interpret the Constitution as the Founders intended, or amend it by having three quarters of the states ratify any changes. There is no legitimate third option.
But they don’t mean a word of it. If there is a single unifying thread to conservative judicial thought in the last half-century, it is the expansion of corporate rights at the expense of individual and public rights. The Founding Fathers were not monolithic. Just about the only thing that they all agreed on was the dangers of unfettered corporate power. At that time the only remotely modern corporations the world had seen were the British and Dutch East India companies. And it was already apparent that these entities could amass enough power to force the state do their bidding and to bail them out financially.
In fact, the Tea Act, which sparked the Boston Tea Party, was passed at the behest of British East India Company to help them empty out their over-stuffed warehouses in London. So the Founders were no fans of John Company, as it was informally known.
The idea of corporate “personhood” has evolved in the 200-plus years since. It makes perfect sense to have a type of legal entity that can limit liability and have ownership units broken into shares. So far so good. But the idea of these entities as “people” with complete Constitutional rights was first articulated on the Supreme Court by Nixon-appointee / Chamber of Commerce toadie Lewis Powell. This concept has since gone through the looking glass.
As Jeffrey Clement’s points out in his wonderful book Corporations Are Not People, by the late 80’s this new theory of corporate rights was used to overturn regulations addressing food and drug safety, clean air and water, banking and more. According to modern conservative judicial reasoning, corporations not only have rights, those rights supercede the rights of private individuals and public entities. And “originalist” judges are happy to legislate from the bench to enforce those rights.
Which brings us to our new friend Neil Gorsuch, who has never seen an abuse of power by a business that he couldn’t justify. People for the American Way compiled a list of his 35 most outrageous dissents. My two favorites show that he literally values the rights of corporate entities more than the actual lives of their flesh and blood employees. In one case an untrained employee was sent into a high risk area to do a task only trained employees were supposed to do. He was subsequently electrocuted and died. Gorsuch found that company did no wrong even though their own internal regulations required proper training to do the job in question.
In a second case a truck driver was fired because he refused to freeze to death as he waited for repairs to arrive. The brakes on his trailer were frozen and the heater in the cabin had failed. There was no way to safely operate the vehicle and no way to stay sufficiently warm, so he detached the cab and drove to safety. He returned when the repair crew arrived but was subsequently fired anyway. Gorsuch was the only justice who argued that the company was within its rights to fire the driver.
Here’s the kicker: Gorsuch based his dissent on the language he felt Congress meant to use in the relevant statute - instead of the actual text they, you know...did use. So he is more than happy to legislate from the bench when it suits his purposes. And, like the rest of the conservative movement, he is all-in on the bizarre legal fiction that corporations have Constitutional rights. A theory that any of the Founding Fathers would have found self-evidently ridiculous.
Moving on. To guns. The entire conservative legal world - along with a huge portion of the electorate - believes that the Second Amendment gives individuals the right to bear arms. This is the result of a 40 year full court press by the NRA to change how people interpret the Amendment. There are plenty of arguments you could make defending gun ownership. And I’m personally skeptical of government prohibitions of any stripe. So I don’t have a problem with people owning firearms. But there is no way you can honestly argue, like Scalia and company did in the Heller decision, that the right of individuals to own guns is Constitutionally protected.
The text of the Constitution is very clearly referring to local militias. A phenomenon which no longer exists in the modern world. If you go back and read the debates the framers made at the time, they were almost entirely focused on the issue of militias and said nothing about a personal right to own guns. They may very well have agreed with the principle, but that wasn’t what the Amendment was about.
I highly recommend Michael Waldman’s The Second Amendment: A Biography, if you want to get your hands dirty. But the essential point is that gun ownership is a state and local issue, and no intellectually honest Originalist, Strict Constructionist could argue otherwise.
That is the larger point as well - no intellectually honest Originalist, Strict Constructionist could make these arguments because no such person exists. They can’t. Because it’s impossible.
As University of Chicago Law Professor Geoffrey Stone puts it, the Constitution:
“[D]efines our most fundamental rights and protections in open-ended terms: “freedom of speech,” for example, and “equal protection of the laws,” “due process of law,” “unreasonable searches and seizures,” “free exercise” of religion, and “cruel and unusual punishment.” These terms are not self-defining; they did not have clear meanings even to the people who drafted them. The framers fully understood that they were leaving it to future generations to use their intelligence, judgment and experience to give concrete meaning to the expressed aspirations.”
Which brings us to the quote at the top of the page. The Constitution, like the Bible, can be retrofitted to accommodate whatever meaning Conservatives need to find in it. And it just so happens that the Founding Fathers -- a group of agnostic revolutionaries with a deep-seated distrust of corporate power - agreed with modern conservatives on absolutely everything. Total coincidence.
Over the course of the next few weeks, when conservatives use the Gorsuch hearings to crow about their dedication to the Constitution, and about how they love and cherish the document unlike those heathen liberals, remember this: They have no idea what they are talking about.
We cannot let them continue to define the Constitution, and to pretend they have a special relationship with it. And it’s time for us to advance an understanding of the Constitution that is much more in line with the Founder’s intent. It is the skeletal support system of America’s Common Law, not an engraved tablet brought down from the mountain.