Originalism

Joel Goodman
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Posted: Mar 22, 2017 12:01 AM
Originalism

Editor's Note: Some thoughts on how Judge Gorsuch might have answered Dianne Feinstein

Senator Feinstein - I appreciate your concern for the several people impacted by the events that you have described to me. But, as much power that you seem to attribute to me, I fear I do not, nor ever would– nor should – as a solitary member of the Supreme Court, have that power.

There is a joke among lawyers, somewhat self derogatory, but telling. The question asked is, “Do you know the difference between God and a lawyer?’ The answer is – “God doesn’t think he’s a lawyer.”

Well, there are many in the legal profession who may consider himself or herself a god. I certainly am not one who does. And, it is from that point of view that I will address your concerns.

You are an honorable Senator, selected by the people of the State of California, one of one hundred members of the Senate, and one of 535 members of the entire Congress. It is up to you and your colleagues to make the laws that govern this wonderful special land we call America.

Your term is set, and while serving honorably, you are beyond impeachment, serving for a term of at least six years. If at anytime the people of your state feel that your political philosophy no longer suits them, or they come to desire new leadership in the Congress to represent them, they have an opportunity to vote you out of office and replace you. You are accountable to the people at least every six years. The House members are chosen every two years and the President every four years.

The Founders very carefully laid out this system. I, on the other hand, were I to succeed to the Supreme Court, with good behavior, I could be there for life, and at this moment we have some aged members who continue to serve faithfully.

But, therein lie the problem and the solution.

This Constitution you call a living document, is not a living document. It is a changeable document – more precisely, an amendable document.

You have inferred that were I took look upon a modern issue from the point of view of 1789, at the beginning of the new republic, I might still find that an African could legally be held to involuntary servitude – to be held as chattel, a slave, as was common in much if the world in those days, and sadly still is in many parts of the world, even as we speak.

But, what you present is not a true reflection of today’s reality.

There are three branches of government. Your branch determines the laws. My job as a judge is to see of what is being done is being done according to the law. There have been times when laws were terrible and unfair and unjust. But, if such an instance existed today, it would not be my job to change the law or hand down a verdict or a decision contrary to that law. I might add a dictum, stating that I find the law heinous, and wished it were different. But, that is where my job ends, and that is where your job begins.

I will assume that you do not want me doing your job. But, hypothetically, if you and your colleagues decided that it was okay for Judge Gorsuch to make laws from the bench, because you and your colleagues wanted to take an extended vacation, and were I the type of lawyer that felt I was, in fact, a god, I might roll up my sleeves, kick back in a chair, order in a pizza and a beer, and take a look at how I thought this country ought’ a be run. I would make my list and go to work, and within several years we would have the United States of Gorsuch; but, I will assume that is not what you would want - nine lawyers in robes running the country and making its laws.

And, therein lies the problem and the solution, Judges shouldn’t make laws. We make sure they are followed, and sometimes even that apparently simple task can be quite daunting. But, if we stick to a law only amendable by legislation and Constitutional changes then, who we are, what we personally believe or how old or young we are is of no consequence, because we are not making law, but merely making decisions based on the law.

So, from that regard, in today’s America I could not hold a Black man to slavery, nor could I deny a Woman the right to vote, because since 1787, the date of origination of the Constitution, the Constitution has changed. Slavery has ended and women are longer prevented from voting. The Constitution has been amended in such ways that at one time you were unable to bring alcoholic beverages into the country, and then suddenly you were. But, your predecessors, not by judges, made those changes.

I would find it very disconcerting to know that you wanted to send me to the Supreme Court to make new law. That is your job. Give the courts good law and you will have good decisions.

As someone you call an Originalist, a term I find inexact but not particularly to my disliking, I would be proud to look at Congressional law and have suits brought before me and judge the litigants cause of action by those laws.

I don’t believe you want to abrogate your responsibility and neither do I believe that you want me to usurp your authority. You are a legislator, I am a judge, not sitting to decide the value of the legislation you make, but to judge whether or not in some particular instance someone violated the law you made. That is enough responsibility for any one person to take on.