Supreme Court nominee Gorsuch: An Episcopal faith?

Neil Gorsuch, Donald Trump’s nominee for the Supreme Court, attended Catholic schools growing up but now is a member of a Colorado Episcopal Church, according to Religion News Service:

He studied at the Jesuit-run Georgetown Preparatory School in Bethesda, Md., while his mother, Anne Gorsuch, served as President Ronald Reagan’s administrator of the Environmental Protection Agency. After college and law school at Columbia and Harvard respectively, Gorsuch clerked for Justice Anthony Kennedy, who is Catholic. Gorsuch, his wife and two daughters attend St. John’s Episcopal Church in Boulder, Colo.

RNS has published an outline of Gorsuch’s relationship with faith and religion, pointing out that he has sided with religious groups against Affordable Care Act and birth control; he “opposes euthanasia and physician-assisted suicide and he has not ruled on any abortion-related cases.

A Washington Post article quotes the sermon given the day after the presidential election by the rector of St. John’s:

The day after Donald Trump was elected president, the Rev. Susan Springer wrote to her congregation that they should strive to behave as Godly people who spread hope even though “the world is clasping its head in its hands and crying out in fear.”

Gorsuch’s conservatism could be at odds with St. John’s own leanings. For instance, he is expected to support the rights of gun owners over gun control – “His church, meanwhile, decided after 49 people were fatally shot in a gay nightclub in Orlando that it would ring its bells 49 times each Wednesday from July 6 to the presidential election, as a way of asking members of Congress to pass stricter gun restrictions.”

Religious groups of varying political persuasions expressed their opinions of Gorsuch’s nomination on Tuesday and Wednesday. Liberal faith groups and nontheistic groups including the Union for Reform Judaism, the Secular Coalition for America and the Freedom from Religion Foundation voiced strong concerns. Many evangelical Christians — who spoke frequently when they voted for Trump of their hopes for a conservative justice who would overturn the Roe v. Wade decision that legalized abortion — met the news of Gorsuch’s nomination with glee.

If appointed, Gorsuch will be the first Protestant to join the court since 2010 (currently, five are Roman Catholic and three are Jewish).

From Forbes:

Gorsuch has ruled consistently in favor of religious rights, joining the Hobby Lobby decision later affirmed by the Supreme Court allowing religious employers to avoid paying for contraceptives.

In a case involving a Native American prisoner he stated Congress has made it clear judges “lack any license to decide the relative value of a particular exercise to a religion.”

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  1. Well, I don’t expect all my Episcopal siblings to agree with me. We have noted that the Episcopal Church does not have an official magisterium to press conformity of views.

    Also, I wouldn’t want to say that there can’t be a conservative plan to meet needs that we as progressives see. Far too often, though, those who call themselves “conservative” differ on the need to be met, rather than whether there can be different approaches. As for Brother Gorsuch: much remains to be seen.

    • William (Bill) Paul

      Good point. A very incautious headline here. Interesting that the left-leaning, left-moving leaders of our church love to say “we’re not a confessional church” (a blanket statement worth interrogating btw) but, as in this post’s headline, then question whether Episcopal identity has been transgressed when someone *may* have different social policies. Liberal inconsistency and liberal intolerance yet again (from someone who has voted Democratic most of the time btw).

  2. D. Beales

    For futire comments, please follow the posted comment policy of using your first & last names. – editor

    Gorsuch headed a student fascism organization in high school. Much ado is being made about this on social media. Context is everything, however, and I wonder how many would choose to be judged on their actions as teens. Too, no context for this youthful group, whether it was formed in jest, or quite seriously. That he was unanimously appointed speaks well of his candidacy. That he is conservative leaning shouldn’t be a surprise to anyone. I’m hopeful that he will act in good stead to uphold the Constitution. That is truly his role. We should recognize that.

    • David Allen

      That he was unanimously appointed speaks well of his candidacy.

      Can you expand on that, I’m not informed as to what you mean or to what you are referring?

      • Mark Wilkinson

        I believe he is referring to his current appointment as a judge. He was approved unanimously.

    • Gregory Orloff

      While uncertain as I am about Neil Gorsuch as many are, in the interest of squashing “fake news” (no matter how much ado is made of it on social media), the rumors of his starting or heading a fascist student organization in high school have been debunked as false:

  3. Sue Eades

    He has not been approved unanimously or otherwise. He has been appointed by one man. He is not a candidate, that would imply he is elected. Justices are appointed and then confirmed. Whether he is a good person for the job or not will be determined by how historically he has voted on certain issues and with that history it can be surmised he will continue to vote in a similar manner.

    • Sue, he was appointed to the Federal Appellate bench some years ago, which also requires Senate approval; and no Senator voted against him.

  4. Don’t you mean, “first Episcopalian or Anglican,” not Protestant?

    • John Morrell

      The first words of the church’s constitution are “the Protestant Episcopal Church in the United States of America.”

      • leslie marshall

        If approved, Gorsuch will be the ONLY Protestant Justice on the Supreme Court (the others are Jewish & Catholic). The last protestant on the bench was John P. Stevens, Lutheran, retired in 2010.

        So far, there have been 33 Episcopalians on the Supreme Court.

  5. David Fisher

    It will be interesting, given President Trump’s support for allowing right-wing pastors to endorse political candidates without loss of tax-exempt status whether this will permit liberal churches the same ability.

    • Bob King

      The presumption of malevolence in your comment is startling. What exactly is it about Trump’s support for expanded free speech from the pulpit that leads you to believe he would deny it to liberals? Where did he ever say that? Or even imply that?

      People on both sides are hyperventilating. Our church should be a place of moderation, but sadly the leadership of this church has elected to participate in this unnecessary knee-jerk hysteria.

      • David Fisher

        I did not presume malevolence; only that it is not clear whether, in playing to his base, President Trump has thought through the consequences of destroying the Johnson Amendment.
        Further, your comment about “knee jerk hysteria” ignores commentaries by conservative writers, such as David Brooks or Michael Gersten, on dangers to democracy posed by Trump and his Cromwell, Steven Bannon.

      • David, I’m as sure as you are that Mr. Trump hasn’t thought through the consequences of many of his public statements, including his desire to see the Johnson Amendment repealed. I think it would be a bad idea also.

        What I am taking issue with is your supposition that a repeal might not apply equally to both sides. You still haven’t given us any sources for your concern that such an appeal would be applied in a one-sided way. That is the kind of presumption of malevolence and knee-jerk hysteria that I am talking about.

        You deflect citing David Brooks as another critic of Mr. Trump, but I agree with most of Brooks’ points, and one thing you can say about him is that he doesn’t knee-jerk anything.

        But implying that there is reason to suspect a repeal of the Johnson Amendment would only free conservatives, and not liberals, of the existing adverse tax consequences inherent in partisan politicking from the pulpit, is needless hyperventilation. There is no basis I have seen for throwing that kind of inference into the debate.

  6. Helen Eyles

    He was appointed to his current position 10 years ago by President Bush. Unanimously approved on voice vote by US Congress at the time.

    • David Allen

      To be clear, the US Senate has the constitutional responsibility to confirm presidential nominees to office, not the Congress as a whole.

  7. Kathryn Jensen

    Neil Gorsuch currently is a judge on the U.S. Court of Appeal for the 10th Circuit. He was confirmed unanimously when he was before the Senate for that position. This week President Trump nominated him for a position on the U.S. Supreme Court.

    As I read the article, it suggests that the fact that Judge Gorsuch is an Episcopalian may mean he is or will be more moderate than one might expect, given his conservative judicial philosophy, because the Episcopal Church as a whole inclines towards liberal social values. The fact that Justice Souter turned out to be less conservative than expected is linked to the fact that he, too, was and is an Episcopalian.

    There are at least twos flaws with this reasoning. First, as noted above, we have no magisterium, and our members have a wide variety of views on social and political issues. Second, it’s mixing apples and oranges, suggesting that liberal social values or theology may temper a conservative judicial philosophy.

    Unlike Justice Souter, Judge Gorsuch has a clear record of subscribing to Scalia’s “originalism,” a distinctive judicial doctrine. Even if Gorsuch were to have no personal objections to gay marriage or to abortion (although there is some evidence to suggest he might be pro-life), that would not likely affect how he would rule in cases involving the current constitutional protections for marriage equality and reproductive rights.

    Scalia’s “originalism” rejects the Court’s reading of the Due Process clause of the Constitution as implying a right of privacy or liberty interest, from which abortion rights and rights to gay sex and marriage have been derived. Under this view, such rights could be granted by the legislature or by constitutional amendment, but they simply cannot be read into the Constitution because they are not in the original text. [A brief discussion of the difference between the majority’s view and Scalia’s originalism can be found in retired Justice Stevens’ recent article on Obergefell v. Hedges, the 2015 case that gave us marriage equality, at .]

    Given his embrace of “originalism” and allegiance to Scalia’s judicial philosophy, Gorsuch may well believe thatt Roe v. Wade and Obergefell v. Hedges were wrongly decided. What is unknown is whether he would nevertheless adhere to them as precedent but be willing to allow restrictions on those rights, whether created by the legislature or due to a competing constitutional right to free exercise of religion (as he did in Hobby Lobby).

    The author of the Washington Post article cited above seems to have ignored another Washington Post article, which quoted Gorsuch as saying: ” ‘Legislators’ may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future,” but “judges should do none of these things in a democratic society.” Similarly, the NYT quoted a 2005 article in the National Review in which Gorsuch said that “American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda.”

    Trying to predict how a nominee for the Supreme Court will rule once he or she is on the bench is akin to reading tea leaves. One can learn a great deal from reading a nominee’s books, articles, and court opinions and perhaps make some educated guesses. But from what we do know, I doubt that being an Episcopalian is any indicator that he may be or might become less “conservative” because “conservative” in the context “originalism” has nothing to do with liberal theology and, in any event, requires rejection of one’s personal views. He may or may not apply the doctrine strictly if and when he joins the Court. (Indeed, Scalia himself was not 100% consistent in applying it, or so says Judge Posner, noted legal scholar and judge on the U.S. Court of Appeal for the Seventh Circuit.) But it is very unlikely that he will simply jettison a judicial philosophy that claims to set aside a judge’s personal views in favor of strict construction of the text of the Constitution.

    Finally, even if Gorsuch’s religious background were to have any bearing on what kind of justice he might be, it should be noted that he was raised Roman Catholic, went to a Jesuit-run prep school, and most significantly, after earning degrees from Columbia University and Harvard Law School, went to Oxford and studied legal philosophy under John Finnis, a Catholic, now at the U. of Notre Dame Law School, who holds very traditional views of marriage (see These experiences may have shaped his thinking as much or more than his time in the Episcopal Church — or not.

  8. John Morrell

    Gorsuch also clerked for Justice Byron White, an Episcopalian, who was a dissenter in Roe v. Wade.

  9. Pat Downs

    I am afraid much ado about nothing is being made. He is a constitutionalist. That is why people are in conflict. He believes he is to apply the constitution as it was written. It is not his position to create new law. We have congress for that. I am in full support of his elevation to justice.

  10. David Allen

    Those of you commenting that you are happy he is a “constitutionalist,” are you then in favor of him joining a conservative majority in overturning previous USSC rulings which you deem “courts creating new law?” In addition to overturning Roe v Wade, a woman having control over her own body, are you in favor of overturning both rulings that have lead the US to marriage equality, Loving v Virginia and Obergefell v Hodges, which cited Loving a dozen times, and both of which relied on the 14th Amendment’s Equal Protection Clause?

    The Loving decision relied upon Brown v Board of Education, that legally ended racial segregation and Obergefell relied on Lawrence v Texas, which legally ended bans on same-sex sexual activity. Obergefell also relied on the 14th Amendment’s Due Process Clause.

    • Anand Gnanadesikan


      While I’m very unhappy by the way Republicans stole a Supreme Court seat for what seem to me to be clearly racial reasons, I think one needs to be fair to Judge Gorsuch.

      There’s a difference between Equal Protection and substantive Due Process law. Loving in particular is an easy application- the framers of the 14th amendment clearly meant to extend broad civil rights protections to African Americans. Judge Gorsuch (in contrast to Antonin Scalia) has shown that he actually cares about minority religious rights, so I’m less concerned that he’ll undermine laws on this basis. I am worried about his extension of equal protection to for-profit companies. (As an aside, pro-lifers argue that Equal Protection ought to apply to the unborn. Which has some moral force, even in Episcopal teaching).

      Both Scalia and Gorsuch have shown some appreciation for due process as well One of the surprises of looking at the Supreme Court is how sometimes conservatives like Scalia and Thomas have sided with criminal defendants when prosecutors try to apply the “spirit of the law”.

      Substantive due process is trickier. The problem is that this doctrine can turn into “I’m going to strike down this law because I don’t like it, even though there’s nothing in the Constitution that prohibits me from doing so.” In US history it has been used to strike down minimum wage and hours laws, child labor laws, and other pieces of socially progressive legislation, as well as striking laws against birth control and abortion beloved to progressives. We may be about to see what it looks like in the hands of conservatives again.


      • Thom Forde

        Why do you think the GOP opposition and failure to approve Merrick Garland was for “racial reasons?”

    • Bob King


      The job of the judiciary is not to decide what is the preferred political outcome (e.g. “can a woman have control over her own body?”), but whether the Constitution grants the legislature, or a state, authority to pass a law.

      The political process (legislatures in state houses and in Washington DC) is where such value judgments should be made. The courts exist to ensure that government does not overstep the authority granted to it by the Constitution. Period.

      • Bob, I don’t think we should gloss as a “preferred political outcome” what is substantively a question of the right of legal personhood of a woman under the Constitution vs. that of a man (who is simply not affected by pregnancy in the same way). This different in degree but not in kind from the right of a woman to hold property, to conclude contracts, to bodily integrity. In our history men were recognized as persons in ways that women were not. It is a matter of full and independent legal personhood under the Constitution, and simply a “preferred political outcome.”

      • David Allen

        And yet Bob, wouldn’t the USSC going back and looking at whether the USSC’s previous decisions in the cases I cited were in error as to “whether the Constitution grants the legislature, or a state, authority to pass a law” in and of itself be about achieving a “preferred political outcome?”

        I can’t see any other reason for supporting revisiting those decisions other than to have them overturned and achieve a preferred political outcome; allowing states to outlaw abortion and allowing states to outlaw same-sex marriage. And why not outlaw interracial marriage while we are at it?

  11. David Fisher

    Jack Balkin’s Living Originalism (Harvard University Press, 2011), argues that the best versions of originalism and living constitutionalism are not in conflict but are compatible. It shows why modern conceptions of civil rights and civil liberties, and the modern state’s protection of national security, health, safety, and the environment, are fully consistent with the Constitution’s original meaning. And it explains how both liberals and conservatives, working through political parties and social movements, play important roles in the ongoing project of constitutional construction.

    As the title Living Originalism suggests, Balkin argues for what could be a called a “third way” in American constitutionalism, a fusion of competing originalist and living-constitutionalist methodologies. Properly understood, Balkin contends, originalism and living constitutionalism are not in fact rivals but rather necessary complements within the overarching enterprise of American constitutional interpretation.

    Balkin’s theory has several key components. He first argues that the choice to accept the American constitutional project as one’s own project has necessary consequences for the selection of interpretive methods: “Treating the Constitution as our law today means that we adopt its plan for governance as our plan for governance and that we implement and build on it in ways that are consistent with the plan” (p.36). The Constitution, as written law, establishes a basic framework of government which “sets politics in motion” and simultaneously “constrains and enables” later decision-making (pp.3, 35). If we wish to maintain the Constitution as our plan for government, with its “distinctive forms of constraint and delegation,” then we must use interpretive methods that “preserve the meaning of the words that constitute the framework” and allow the Constitution to function as written law (pp.35-36).

    What interpretive approach will preserve the Constitution as a plan for government? Balkin endorses the method of “text and principle,” which is a shorthand form of “text, rule, standard, and principle” (p.6). This interpretive method combines recognition of an originalist core of constitutional interpretation with a broader penumbra of living constitutionalist construction, which together preserve the constitutional plan’s dual “constraints” and “delegations.”

    Balkin’s text-and-principle method is an originalist approach because it requires fidelity to the original semantic meaning of the constitutional text. Balkin endorses this core of originalism because he believes that it is necessary for the Constitution to function properly as a source of legal constraint. If we are free to interpret a rule stating that the president shall be at least “thirty-five” years of age to mean that he or she may be thirty-four or less, then the written Constitution cannot function as a source of constraint establishing a plan for government. [*59]

    However, the method of “text and principle” also encompasses living constitutionalism because fidelity to the original semantic meaning of the Constitution is in many cases completely consistent with evolving living-constitutionalist constructions of the text. Why is this so? Because the text of the Constitution is not confined to firm legal rules that maximize constraint; it also contains open-ended standards and principles that delegate power to future decision-makers.

    The distinction between the Constitution’s rules, on the one hand, and its standards and principles, on the other, is central to Balkin’s fusion of originalism and living constitutionalism. When the framers of a constitutional provision choose a firm textual rule (e.g., the president must be at least thirty-five), the original semantic meaning of the rule is clear, and true fidelity to the Constitution leaves little or no room for creative forms of living constitutionalism. “Thirty-five” means thirty-five.

    But, Balkin argues, when framers deliberately choose open-ended textual standards and principles (e.g., prohibiting “unreasonable” searches and seizures or laws abridging “freedom of speech”), the original semantic meaning is quite consistent with a broad range of later living-constitutionalist constructions which can change as values and conditions change. “Unreasonable” means unreasonable, a flexible standard, rather than a clear rule; and this kind of standard delegates to future interpreters the discretion to determine more precisely what the standard requires when applied in particular cases.

    For the Constitution to function as a plan for government that delegates and empowers as well as constrains, the original semantic meaning of open-ended standards and principles must be preserved as such. When particular cases are resolved under these open-ended provisions, the interpreter must engage in the construction of the living Constitution, something each generation of Americans can do by drawing on additional interpretive strategies. These include the wide range of interpretive modes generally accepted as legitimate in the American legal community, such as arguments based on precedent, legal tradition, narrower forms of originalism (e.g., the framers’ “expected applications”), and constitutional purposes and policies.

    Balkin’s views on the nature of the American constitutional project and the interpretive method of “text and principle” are in turn linked to his distinction between “framework originalism” and “skyscraper originalism.” Balkin maintains that “framework originalism” rightly views the original semantic meaning of the Constitution as establishing a basic legal framework, one which constrains by using rules to resolve many core constitutional questions concerning the basic plan for government while also delegating through the use of standards and principles many more detailed constitutional questions to be filled in and built out by later generations.

    By contrast, Balkin asserts that “skyscraper originalism” mistakenly seeks to maximize constitutional constraint by interpreting the Constitution’s express standards and principles as implied rules [*60] which create not just the framework for government but the subordinate details as well. “Skyscraper originalism,” in short, looks to the framers not just for the basic framework but for the construction of the entire constitutional “building.”

    Notably, Balkin’s conception of what is “built out” in the process of constructing the living Constitution is quite expansive – a kind of living constitutionalist “super-skyscraper.” It extends well beyond judicial construction of legal doctrines in the cases that establish bodies of constitutional law to even acts of Congress that reflect evolving social norms and relate in some fashion to the Constitution’s broadest principles and purposes. In Balkin’s view, the creation of the Justice Department, the passage of the Administrative Procedure Act of 1946, and enactment of the Social Security Act of 1935 are all “constructions” of the living Constitution – built by the political branches through a process of “constitutional politics.”

    Balkin also contends that a wide range of political and social movements are engaged in the process of constitutional construction when they act to influence social and cultural values in ways that will eventually change the shape given to constitutional principles by elected officials and judges. The civil rights movement, the feminist movement, the gay rights movement – all are participants in the process of constitutional construction and not just when they are litigating cases or expressly arguing about the Constitution. In fact, Balkin’s conception of the sweep of the living Constitution is so expansive that it is hard to cabin – and he concludes that “it is best not to worry too much about where constitutional construction leaves off and merely ordinary politics begins” (p.300).

    Significantly, Balkin also places ordinary citizens, rather than judges, at the center of American constitutionalism. On the crucial question of constitutional interpretation, Balkin contends that we “should start with interpretation by citizens as the standard case” and that “interpretation by judges [is] a special case with special considerations created by the judicial role” (p.17). In Balkin’s view, living constitutionalism cannot be primarily a theory about “what judges should do” because such a judge-centered view is at “odds with the very assumptions behind the living Constitution” (p.278).

    In fact, Balkin argues that the “social change” which makes the living Constitution “live” arises not from the judicial process but from much broader and deeper “social, political, and economic forces” which are consistent with the primacy of the democratic process in the United States and the popular sovereignty foundations of the Constitution (p.278). On the related question of interpretive authority, Balkin also “specifically reject[s]” the Supreme Court’s assertion of “judicial supremacy” in constitutional interpretation and notes that his book “assume[s] rather than argue[s]” for the benefits of a more limited power of judicial review (p.68).

    Most fundamentally, the construction of the living Constitution occurs in the realm of politics, and this provides the basis for Balkin’s claim about the relationship of living constitutionalism [*61] to the success of the American constitutional project. American values and social conditions change over time, and each generation of Americans further disagrees about many fundamental political questions. Through the process of living constitutionalism, Americans can respond to change and express their disagreements in ways that make it possible for them to fully accept rather than reject the Constitution as a continuing framework for government. Perennial and robust democratic debate about questions of liberty, fairness, justice, order, and prudence structured by constitutional principles preserves the Constitution’s legitimacy by enabling citizens over time to view the Constitution as a “common object of fidelity and attachment” whatever their political values (p.93).

    Building on this thought, Balkin contends that “normative theories” of constitutional interpretation are “important” principally because they can help citizens and other participants in debate “understand and express claims” concerning the “legitimacy or illegitimacy” of their “current constitutional arrangements” and political practices (p.93). Thus the principal function of theories of constitutional interpretation is not to provide judges with determinate, constrained, or putatively “correct” answers to legalistic constitutional questions but rather to allow citizens to express their political values in the broad language of the Constitution. Balkin’s own method of “text and principle” is meant to serve precisely as a “platform for persuasion,” one which can be used by anyone to argue for a conception of the Constitution that reflects his or her own preferred principles and policies – rather than as a method that will provide detailed instructions to judges on the resolution of difficult constitutional cases (p.129).

    In fact, one of the great strengths of Balkin’s book is the capacity of his theory to provide a satisfying account in its own terms of its most obvious interpretive rivals: the cluster of narrower “originalist” theories that emerged as conservative responses to the controversial liberal ventures of the Warren Court in the 1960s. Balkin repeatedly claims that the forms of originalism associated with the late Robert Bork and with Justice Antonin Scalia can be better understood as an exercise in living constitutionalism drawing implicitly on the method of “text and principle.” On this view, the Borkian theorist starts with a concern for text-based constitutional principles of democratic accountability and federalism. The Borkian’s unacknowledged living-constitutionalist construction of these principles reflects conservative values of populism and states’ rights, favoring the power of elected legislatures over unelected courts and the power of the fifty states over the power of the federal government. Borkians then seek to preserve their understanding of these constitutional principles from the threat posed by assertive federal judges who may prefer to remove many policy questions – such as abortion, capital punishment, flag desecration, and the like – from the state and federal democratic processes.

    Borkians, in essence, work to “build out” facets of the living Constitution by asserting constitutional limitations on the exercise of the judicial power – arguing that federal judges may not justify the [*62] invalidation of legislation simply by pointing to open-ended constitutional texts and citing controversial policy arguments (e.g., recourse to abortion is a substantive due process “liberty” government must respect for policy reasons is persuasive only to individuals who are pro-choice). Instead, the Constitution’s principles demand that federal judges justify their conclusions by drawing on legal arguments that firmly limit their power to invade the traditional province of legislatures – such as arguments from “original-expected applications” or long-standing legal traditions. On this view, Borkian originalism is a special theory of judicial interpretation (rather than a general theory of citizen interpretation) because judges present a “special case” and their exercise of power over the living Constitution must be limited in light of “special considerations created by the judicial role” (p.17 )

    Even the Borkian attacks on the very legitimacy of active policy-driven judging are easily preserved under the rubric of Balkin’s theory since the Borkian theorist could contend that federal judges are in fact violating fundamental constitutional principles of democracy and federalism when they engage in aggressive judging, not merely misinterpreting provisions of the Constitution. (Of course, whether any form of originalism can actually provide the source of constraint on judging that Borkians seek is another question entirely.)

    Not surprisingly, a book with the panoramic scope and “third way” mediating impulses of Living Originalism will trouble as well as persuade. Progressive living constitutionalists, while recognizing Balkin as one of their own, may worry that the originalism at the foundation of his theory smuggles a potentially conservative ticking time-bomb into liberal constitutional theory. They may also be concerned that Balkin’s argument will inevitably confer further legitimacy on originalism as an interpretive method and thus on conservative theories of the Constitution more broadly.

    Conservative originalists are unlikely to mistake Balkin for a conservative or a close fellow traveler. They may worry that Balkin’s theory is meant to provide a mere originalist fig leaf for an otherwise very naked form of progressive living constitutionalism. They may further doubt whether the ready translation of political arguments into constitutional claims will support rather than erode constitutional legitimacy as winners and losers inevitably emerge and a Constitution potentially “neutral” on many issues becomes instead closely identified with controversial policies.

    Proponents of expansive judicial power more generally may worry that Balkin’s brand of constitutional populism – which places the citizen rather than the judge at the center of constitutional interpretation – combined with his rejection of judicial supremacy could ultimately encourage judicial passivity in the face of majoritarian political forces. Proponents of more limited judicial power will likely view Balkin as an enabler, if not a defender, of expansive judicial power – someone seemingly not unsatisfied with the energetic judicial invalidation of legislation that has become so commonplace over the last century in the [*63] face of routine political acquiescence. Some of them may also wonder whether Balkin’s stated “citizen-interpreter” focus will function to distract from (or otherwise provide cover for) energetic judicial living constitutionalism.

    Finally, some constitutional theorists may question Balkin’s expansive conception of the realm of the living Constitution. These theorists may prefer a more legalistic conception of the living Constitution, one which leaves a clearer and broader expanse of non-constitutional space in which the play of politics occurs as politics, to Balkin’s view, a “super-skyscraper” conception, which seeks to incorporate a seemingly vast array of legislative and political activity (e.g., passage of the Social Security Act) under the rubric of the living Constitution. (Review by Jack Wade Nowlin, The University of Mississippi School of Law. At Email: and Politics Book Review, pp.58-63)

  12. The primary problem with originalism (which Balkin is trying to ameliorate) is that all too often it privileges a thinly sourced, assumed, original understanding held by one or two of the Framers–or by none of them–over the actual constitutional text. So, for example, Robert Bork famously argued that the Ninth Amendment, which reads that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” was effectively an “ink blot” because it did not specify those rights. This despite the fact that the Ninth Amendment needed to secure ratification.

    Balkin aside, originalism tends to be slanted against developing a jurisprudence on rights, on very shaky historical grounds.

  13. David Fisher

    A final post on originalism, this from Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States, IIT Chicago-Kent College of Law, at ACS Blog.
    Now that President Trump has nominated Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit to the Supreme Court, we will be hearing a lot about the proper role of a Supreme Court justice. In introducing Judge Gorsuch, for example, Trump said that he had sought a nominee who would “interpret [the Constitution and laws] as written.” Praising Trump’s choice, Sean Hannity noted that Trump was fulfilling his promise to appoint someone who would “strictly adhere to the original meaning of the words of the Constitution” and claimed that Gorsuch is not someone who will “legislate from the bench.” Other conservatives have hailed him as a “textualist” and one who “espouses judicial restraint.”

    All of these statements are wrong. They are wrong not necessarily because they misdescribe Gorsuch’s jurisprudence, but because they misdescribe the job. The job of the judge – and especially the job of a Supreme Court justice – is much more complex and nuanced than catchphrases like “applying the law as written” suggest.

    The statements are also code. They are code for a particular type of judge – and make no mistake, it is a judge who conservatives believe will produce results that, by and large, they like. This is not to say that a judge has to do something illegitimate to reach those results. Rather, it is to say that such a judge is – like all judges addressing hard and indeterminate questions of law – making judgments, considering facts, weighing competing principles and taking account of precedent, history, and societal norms and expectations. Justice Scalia, and his many followers, claim otherwise. They claim that originalism – interpreting the Constitution as understood at the time of the Framing (or the time of the enactment of relevant amendments) – and textualism – refusing to look beyond the text of a statute to determine its meaning – constrain judges and prevent them from imposing their own views. But the sources of information about original meaning are limited and indeterminate, the language of both the Constitution and statutes is often general and sometimes ambiguous, and the factual circumstances can be far removed from anything that the Framers or statutory drafters could have imagined. A judge’s judgments about the underlying purpose of the provisions, how those purposes should be prioritized against other legal principles, how much weight to give relevant precedent, and the likely effects of different results in the world will all come into play.

    Perhaps the best way to illustrate these realities are by example. In his book, The Living Constitution, Professor David Strauss (an ACS Board Member) offers a number of important examples of originalism’s failures. The most powerful example, of course is that based on the original meaning of the Fourteenth Amendment, Brown v. Board of Education was wrongly decided. There is little question that most people at the time of the enactment of the Fourteenth Amendment thought that segregated schools were just fine and did not think that the amendment rendered them unconstitutional. (Justice Scalia himself hated talking about Brown and complained about non-originalists “waving the bloody shirt of Brown.”)

    Some originalists attempt to explain Brown by reference to the principles of the Fourteenth Amendment. In a 1987 article in the New York Review of Books, Ronald Dworkin described Robert Bork’s attempt to do so: “Bork says that the Brown case was rightly decided because the original intention that judges should consult is not some set of very concrete opinions the framers might have had, about what would or would not fall within the scope of the general principle they meant to lay down, but the general principle itself.” But identifying a general principle and figuring out how to apply it today is what all judges do. And doing that requires judgment, not simply deductive reasoning or poring over historical documents. Although documents may play a role, they are often inconclusive or inconsistent, and figuring out which statements and sources, which principles and motivations, should carry the day is itself a judgment-laden exercise.

    Textualism, which Justice Scalia championed and which claims to apply the text of a statute without regard to legislative intent, similarly subsumes judgment calls under a patina of objectivity. For one example, look to the Supreme Court’s jurisprudence on the Federal Arbitration Act. The main operative section of this statute, which was passed at a time when many state courts were refusing to honor arbitration clauses at all, provides that arbitration clauses in contracts “involving commerce … shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” But in case after case (almost all of them 5-4 decisions, with the majority opinion authored by Justice Scalia), the Supreme Court read this language to reveal a preference for arbitration over other forms of dispute resolution, even in situations where that preference effectively eliminates any possible relief and in situations where state law would invalidate the contract as unconscionable. That is not textualism. That is a judgment that the statute does and should privilege arbitration and the protections arbitration provides to corporations and other large entities over other important legal principles, including the respect for state contract law that the statute itself identifies.

    So while we prepare for the confirmation hearings and go over Judge Gorsuch’s record with a fine tooth comb, do not let the myth persist. Originalism and textualism, declining to “legislate from the bench,” “exercising judicial restraint” – these are all nice words, but they mean something quite specific. They refer to a conservative brand of jurisprudence, one that is just as judgment-laden and contingent as any other.

  14. Let me partially disagree with David Fisher’s comment. William O. Douglas and Hugo L. Black–two of the most liberal justices in the Court’s history–were self described textualist, reacting to the abuse of the Due Process Clause to overturn progressive legislation based on the subjective opinions of the judges of what policies served the Nation best (this was widely known as “Lochnerism,” so-called from Lochner v. New York, which overturned state maximum hour laws on the basis that this interfered with constitutionally protected “liberty of contract”). The aggressive defense of unnamed rights by Douglas was predicated on the Ninth Amendment. Originalism is inherently dangerous; textualist and judicial restraint are more complicated.

  15. Betsy Love

    Fellow Episcopalians,

    These arguments are intellectually delicious, but thankfully long ago, God recognized homo sapiens were too easily condemning others; creating a vast amount of folks poor in spirit. Then, Jesus Christ cleared up a few things. I imagine that the founding fathers and many judges who have come before in the groundbreakers such as Brown, Loving, Lawrence, Roe, Obergefell were simply guided by the Holy Spirit’s message.

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