Most conservatives will be delighted if Neil Gorsuch, as a Justice of the Supreme Court, views the Constitution and his role in interpreting it the way Justice Antonin Scalia did. But George Will hopes that Gorsuch will improve on Scalia.
How? By interpreting the Constitution as a charter of government for a nation dedicated to the proposition that all persons are created equal in their possession of natural rights. Scalia rejected this approach, saying “if you want aspirations, you can read the Declaration of Independence,” but “there is no such philosophizing in our Constitution,” which is “a practical and pragmatic charter of government.”
The debate here is between what Steve Hayward has called the “two originalisms.” He lays out the dispute in Chapter 7 of his brilliant new book Patriotism Is Not Enough.
The books subtitle is “Harry Jaffa, Walter Berns, and the arguments that redefined American Conservatism.” The clash of the “two orginalisms” represents one of those arguments.
Steve captures Jaffa’s view in this quotation:
How one understands the Constitution will depend utterly upon principles, not stated in the Constitution, that one brings to bear upon its interpretation. And it will be those principles, not the Constitution itself, that determines the nature of the Union.
To me, this sounds less like a form of originalism than a statement that originalism, as that term has been understood, is impossible to apply.
Berns considered it misguided to bring natural rights to bear when interpreting the Constitution. In Steve’s words, “Berns and others think the Constitution, while informed by the Declaration [of Independence], is a sturdier center of gravity for American political thought.”
I’m not sure about that. However, I think the Constitution is a sturdier center of gravity for judges when they adjudicate constitutional disputes. And I agree with Berns and Harvey Mansfield that relying on what Scalia called the “aspirations” expressed in the Declaration through appeals to equality and natural law can cause considerable harm.
I think Elena Kagan was right when, in response to a question by Sen. Tom Coburn about natural rights and the Constitution, she said we shouldn’t want her to decide cases based on what she believes “people’s rights are outside the Constitution and the laws.” I certainly don’t want Justice Kagan to do that.
Will views this statement as mischaracterizing the natural rights position. Natural rights, he says, are not “outside” of the Constitution “because its paramount purpose is the protection of those rights.”
I believe the Constitution’s paramount purpose is to protect the rights explicitly set forth in the Constitution — that “practical and pragmatic charter of government,” as Scalia called it. In any event, I don’t want to invite Justice Kagan to determine what additional rights it is the Constitution’s purpose to protect.
Steve has noticed, as Will does, that Neil Gorsuch studied at Oxford under John Finnis, author of the book “Natural Law and Natural Rights.” So perhaps Gorsuch will interpret the Constitution in the way Will desires. Even if so, don’t expect him to say this during his confirmation hearing.
Let me conclude by plugging Steve’s book. The dispute over the Constitution is just one dimension of the absorbing debate Steve analyzes. And in addition to those debates, there is a helluva lot of great story telling.