Originalism: A Cause of Confusion?

A few weeks ago, began the exploration of Originalism, a judicial philosophy endorsed by Neil Gorsuch, Antonin Scalia, and The Heritage Foundation. The question: if a person claims to determine the validity of a law based on the original meaning of the Constitution, what does that person mean? The two options: the Constitution should be read as an ordinary citizen of 1789 would understand it (Textualist), or read as the creators intended it (Intentionalist). These positions are the two, supposedly, viable forms of Originalism. Gorsuch has claimed to be a Textualist, but that position appears to suffer from two deficiencies. First, it ignores the issue that common people would read legal documents differently lawyers. Secondly, it avoids the obvious difficulty that any two lawyers (much like economists) could disagree elementary questions in their discipline, and in this case, the Constitution. For instance, there wouldn't be a Supreme Court if lawyers all agreed on legal interpretation. This second issue exists because, and it may seem trite to say this, the legal system is complex and often indiscernible.

Yet, if one were determined to proceed with this futile odyssey, Intentionalism is a satisfactory position, because there is a clear record of what the creators intended. To understand the Constitution one should observe its principle designers and defenders, James Madison and Alexander Hamilton (though who had a better understanding is debatable. Professor Thomas L. Pangle of the University of Texas at Austin, believes Hamilton better understood the implications of the Constitution, and may have dissimulate about certain unpopular outcomes (though these do not impact the issue discussed here).

And fortunately, Madison and Hamilton, in the 85 essays of The Federalist Papers, clearly delineate the boundaries, intentions, and interpretations of the Constitution. The definitive text on the Constitution, its implications were fiercely contested by the Anti-Federalists. Political scientists can compare Gorsuch voting record, based around his philosophy of Originalism, with these writings, and determine his compliance with the Madisonian and Hamiltonian vision.

One should commence at the most simplest issue. Presuming his nomination, law professor Justin Marceau described Gorsuch in The Denver Post as, “a predictably socially conservative judge who tends to favor state power over federal power.” And while a significant portion of the population support this judicial philosophy, it is rebuffed by the Federalist Papers. The Anti-Federalists insisted the Constitution would strip the states of their sovereignty and reduce them to mere administrative cogs in the Federalist wheel. And Alexander Hamilton writing in Federalist Paper 11 agrees. He describes the States under the Constitution as “bound together in a strict and indissoluble Union, concur in erecting one great American system...” By declaring the Union indissoluble, he annihilates state sovereignty, since they have not the power to disentangle themselves. Furthermore, he emphasizes the merging of thirteen into the one, characterized as “great”, implying superiority (And the Civil War roughly seventy years later, confirmed Hamilton's interpretation).

In Federalist Paper 23, Hamilton expands on the powers of the Federal Government over the States, beginning by lamenting the failures of the Articles of Confederation. He explains, though the Articles provided the National government with a means to requisition, from the States, cash, troops, and supplies for the common defense, it was impossible to force the same to deliver. The Constitution's solution is simple: “we must extend the laws of the federal government to the individual citizens of America”. As he clearly indicates, under the Articles, the relation of the government was between the National administration and the States, but under the Constitution, the relationship would be between National and the citizens. The clarity by which Hamilton describes the subordination and even diminishment of the States is unmistakable.

A current interpretation of the Constitution, which Gorsuch argues against is the Dormant Commerce Clause. Article I, Section 8, Clause 3 of the Constitution says, “[The Congress shall have Power] To regulate Commerce … , and among the several States …” That is, Congress has the power to active regulate commerce. The inferred additional is the Dormant Clause, by which Congress has the power to prohibit a state from passing a law that burdens interstate commerce. Like the power of taxation, the Federal government has supreme authority, but allows states to regulate within limits. James Madison, speaking in Federalist Paper 42, declared “The necessity of a superintending authority over the reciprocal trade of confederated States”, for the purpose of preventing “unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility”. Regulation of the states is required, according to Madison, to prevent each from trying to outwit the other in competition, and fostering bad feelings. Allowing the states to pass laws interfering with each other's commerce would, and did, cause hostility. As Madison describes the National Government, he is indicating it must be the final authority, supervising the states, and so has any power relating to any state laws which might disrupt the fair and equal trade between the states. The Federalist reading of the Constitution requires the assumption of the dormant Commerce Clause. Chief Justice John Marshall, agreed when he said the power to regulate interstate commerce, “can never be exercised by the people themselves, but must be placed in the hands of agents, or lie dormant,” meaning the citizens and the states can not regulate commerce. This power is reserved to the Federal government, and when an issue is not overtly regulated, the National Government has simply not chosen to, but could at any time.

While the supremacy of the National Government is the most singular of issues, Justice Gorsuch's most significant decision related to a different topic. While a member of the 10^th Circuit Court of Appeals he wrote a concurring opinion on Burwell v. Hobby Lobby Stores, Inc. Though it ultimately advanced to, and was decided by, the Supreme Court, Gorsuch's writing is certain to have influenced the final result (though the composition of the Supreme Court probably ensured the result regardless). In his opinion, Gorsuch declared, “that [the owners of Hobby Lobby] are the human actors who must compel the corporations to comply with the mandate.” And since, he continues, “the Greens’ religion teaches them that the use of such drugs or devices is gravely wrong”, they can not be compelled to order their own company to comply with the mandate. In summary, the Greens (owners of Hobby Lobby) can not be forced to order their own company to comply with the Federal mandate to offer their employees with health insurance which provides contraceptives, because it violates their religious beliefs. Gorsuch refers to two cases which support his concurrence: United States v Lee (1982) and Thomas v. Review Board of the Indiana Employment Security Division (1981).

In 1982, Lee, an Amish employer declared he need not pay social security taxes because it violated his religion. While it is true a lower court ruled in his favor, the Supreme Court declared in a unanimous opinion, by entering into a commercial activity (as an employer) the government could impose on his religious beliefs. He was compelled to pay the taxes.

In 1981, Thomas, a devout Jehovah Witness discovered he was working in a factory which fabricated sheet metal for tanks. This violated his religious pacifism, and asked to be laid off, but the company denied his request. Thomas quit, and applied for unemployment, and was denied by the State of Indiana. The Supreme Court ruled in Thomas' favor, ensuring he would receive unemployment benefits.

The difference between Gorusch's examples and the case of Hobby Lobby, as anyone can plainly see, is (in the first), the Supreme Court ruled against the employer, and (in the latter), the Supreme Court was ruling in favor of an employee. In either case, (Lee only employed a handful of helpers for his farm), the Hobby Lobby decision ruled in favor of a corporation which owns six hundred stores, earns four billion in sales, and employs 28,000 people. The comparison is clearly erroneous and definitely, disingenuous.

Gorsuch, in the face of precedent, defends the evangelical Greens' right to deny thousands of employees healthcare. This, is as well, reminiscent of the Anti-Federalists rather than the Federalist. While various Anti-Federalists argued for a religious test for politicians, to protect the United States against “Turks, Papists, Jews, and heathens”, James Madison described such a test as ineffective, “If

the person in question be an unbeliever in these points and would not-withstanding take the oath, a previous test could have no effect,” and designed Article Six of the Constitution which includes, “no religious Test shall ever be required as a Qualification to any Office”. The Anti-Federalists desired government support for Protestantism, but Madison crafted the 1^st Amendment, which said, “Congress shall make no law respecting an establishment of religion”.

Hopefully this makes clear, Gorsuch takes many positions of the Anti-Federalists, while claiming to be a Origionalist. Yet it must be remembered they lost to the Federalists, the creators of the Constitution, who certainly understood the intent of the document. I'm not sure who designed the better argument, the Anti-Federalists or the Federalists, but I at least know which one exists right now, and perhaps the Supreme Court (and the Republican Party) need a reminder.

Originalism and the Federalist Papers