"Judge Gorsuch has stated that he believes judges should look to the original public meaning of the Constitution when they decide what a provision of the Constitution means. This is personal, but I find this originalist judicial philosophy to be really troubling. In essence, it means the judges and courts should evaluate our constitutional rights and privileges as they were understood in 1789.
"However, to do so, would not only ignored the intent of the framers, that the Constitution would be a framework on which to build, but it severely limit the genius of what our Constitution upholds. I firmly believe the American Constitution is a living document, intended to evolve as our country evolves.
"In 1789, a population of the United States was under 4 million. Today, we’re 325 million and growing. At the time of our founding, African-Americans were enslaved. It was not so long after women had been burned at the stake for witchcraft, and the idea of an automobile, let alone the Internet, was unfathomable.
"In fact, if we were to dogmatically adhere to originalist interpretations, then we would still have segregated schools and bans on interracial marriage, women wouldn’t be entitled to equal protection under the law, and government discrimination against LGBT Americans would be permitted. So I am concerned when I hear that Judge Gorsuch is an originalist and a strict constructionist."
The Constitution of United States of American is a body of rules. The Framers organized the entire original Constitution into seven articles. After the Preamble, the first four articles deal with the organization of federal form of government and the limited power (authority and capacity) of each aspect of that government:
- Legislative Branch (Article 1)
- Executive Branch which includes the President (Article 2)
- the Judicial Branch, which includes the Supreme Court (Article 3)
- the States (Article 4).
Because the Framers had such insight, the Framers gave us Article 5. Article 5 describes the Amendment process. Having an amendment process makes the Constitution mutable.
It was through Article 5 that Americans gained our Bill of Rights. The first ten amendments comprise the Bill of Rights. The first ten amendments define the rights each individual has and the duties Congress has with respect to those rights.
With the foregoing in mind, let's compare what dopey Diane said to reality.
Dopey Diane: "In essence, [originalist judicial philosophy] means the judges and courts should evaluate our constitutional rights and privileges as they were understood in 1789."
1. There are no such things as privileges under law. Law is the absence of freedom. Every law has a duty and matching right, a right and a matching duty.
2. Originalism, or as dopey Diane said originalist judicial philosophy, means the Constitution must be read with the definition of the words comprising any sentence as understood by most persons who lived at the time of the writing of the Constitution.
Legal concepts as all concepts are invariant. A language can change. A foreign language can be spoken to describe a concept, but the concept never changes. A oak tree is the same concept in any language. Murder is the same concept in any language.
Further, a review of works from the 1850s, the 1890s and even the 1920s, reveals that our legal concepts today are the same as those which arose through the centuries of Anglo-Saxon and Anglo-Norman law.
The United States Constitution is quite a simple document. The writers spoke and wrote Modern English. So do we.
Dopey Diane: "However, to do so, would not only ignored the intent of the framers, that the Constitution would be a framework on which to build ..."
Reality: The Framers provided the way to build the constitution up, if need be. That way is the amendment as they described in Article 5:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Dopey Diane: "I firmly believe the American Constitution is a living document, intended to evolve as our country evolves."
Reality: Would-be despots like Dopey Diane believe in the ends justify the means. In short, evil ones like Dopey Diane would like to interpret any passage of the Constitution in the ways needed to achieve their ends.
That is what the Living Constitution, aka loose constructionism, aka living document, means. Any day of the week, given a new end, regardless of how injurious or nefarious, under a living document, what once was restricted by the constitution merely could be interpreted anew so as to accomplish the ends.
Again, the Framers provided the way to get the preferred ends, if need be. That way is to amend the Constitution as the Framers described in Article 5.
The whole point of having a firm constitution with an amendment process is to deny despots the chance to rise to power, overthrow the government and instill themselves as dictators.
Dopey Diane: "... African-Americans were enslaved ... women had been burned at the stake for witchcraft ... if we were to dogmatically adhere to originalist interpretations, then we would still have segregated schools and bans on interracial marriage, women wouldn’t be entitled to equal protection under the law, and government discrimination against LGBT Americans would be permitted."
Reality: Because of the means the Framers gave us the means to change our Constitution, Article 5, as Americans have evolved in morality, Americans have amended the Constitution. So with the 13th Amendment, Americans banned slavery. With the 14th Amendment, Americans provided for equal protection.