Forward to the Past

Outrage continues over Justice Neil Gorsuch’s recent remarks that policy responses to COVID-19 may represent “the greatest intrusion of civil liberties in the peacetime history of this country.” Slavery, the historical exclusion of women and non-property owners from voting, Jim Crow, the abuses of the Red Scares and an infinite list of other violations of civil liberties are nothing to Gorsuch compared to asking people to wear masks and get vaccinations. In their attacks on Gorsuch, commentators have focused on this catalogue of grim injustices, but Gorsuch’s remarks on the specifics of COVID-19 policy should also be raising blaring alarm bells about where he wants to take America.

Gorsuch and five of his Supreme Court colleagues approach the law through the eyes of originalists. The idea of originalism is rooted in John Locke’s theory of natural rights. Liberty, proclaimed Locke, is not a product of society or government, it’s a gift from our Creator, hence the only legitimate role of government is to protect our God-given natural rights. Any rights we as citizens decide to create or enlarge, a woman’s right to choose abortion for one, have no such divine sanction. They can be narrowed, retracted, or denied, depending on the Court’s will. Hence Jefferson’s dictum: that government is best which governs least. Originalism at its broadest seeks to establish the intent of the framers, but the late Justice Scalia defined originalism as “the doctrine of original meaning.” That is, originalists interpret the law by asking how the public of the time would have understood the meaning of the words of the constitution when it was written in 1789. By strictly adhering to the supposed original meaning of the constitution’s words for a highly exclusive male, property owning public, originalists claim that their judging is, in essence, an apolitical process of thumbing through18th century dictionaries. It is matter of transferring understandings written in 1787 into the adjudication of 21st century conflicts.

In other words, Gorsuch and his pals want to use an originalist time machine to transport contemporary America back to the rural, agrarian society of 1790, when the population of the United States was about 4 million, including 700 thousand enslaved people; and the only citizens who could vote were white male property-owners, most of whom were largely engaged in farming. The Union consisted of only 13 states, a tiny sliver of North America along the Atlantic coast. Obviously, the United States is a far more complex society today, with a diverse population of over 350 million, the majority of whom – women – claim rights the Framers’ resolutely denied.

Whatever else you can say about Gorsuch and his extremist clique, you can’t say they’re stupid. They are perfectly aware that times have changed. The fact is, they have no problem with change, unless its’ politically progressive change. “Life, liberty and the pursuit of property” was the original Lockean concept, not “the pursuit of happiness” and their Constitution is a Lockean document designed to protect property and the wealthy from what Madison called “the tyranny of the majority.” Originalism is just their smokescreen for protecting a privileged oligarchy. Yet the historic irony of their “originalism” is that property was in fact closely regulated by the states in early 19th century America, none more than the institution of the corporation, whose medieval origins lay in highly restricted monarchical and parliamentary charters. Andrew Jackson’s ideas about freeing up corporations to do whatever they pleased to make a buck would have been anathema to 18th century conservatives, who believed that corporations must primarily serve public purposes, not their own profit. Citizens United, the 2010 decision that allowed corporations to spend their own money in political campaigns, is therefore but one more in a long line of instances of the Court twisting the Constitution to protect the wealthy class and preserve their political power. Let’s not forget Bush v. Gore, when the conservative Court majority halted the electoral count in Florida, effectively declaring their own winner of the presidential election because, after all, citizens have no constitutional right to vote for president. More recently, in a particularly clear example of “originalist” innovation, the Court’s majority in West Virginia v Environmental Protection Agency, simply invented a new category of jurisprudence – the “major questions” doctrine – to justify setting aside Congress’ “original” 1972 delegation to EPA of power to regulate air pollution. As dissenting Justice Elena Kagan observed in her caustic dissent, conservative justices declare faithfulness to statutory text, but “(w)hen that method would frustrate broader goals,” such as rolling back administrative authority and environmental policy, “special canons like ‘the major questions doctrine’ magically appear as get-out of-text-free cards” Then, of course, there’s the infamous Dobbs decision overruling the half-century old precedent of Roe v. Wade, the first time in U.S. history the Supreme Court took away an existing civil right. But then Dobbs v. Jackson is consistent with originalist philosophy: since the Framers mentioned neither privacy nor abortion – it is a socially created right, after all – the states, equipped with the wide berth of their police power, can do virtually anything they want to limit a woman’s right to choose, including making abortion a capital offense. More, in his concurrent opinion in Dobbs, Justice Clarence Thomas strongly hints that the right to use birth control and the right to marry who you wish should be the next civil liberties on the chopping block.

But we have only to look at recent Second Amendment decisions to see the hypocrisy of this Court. The originalists apply the principle of originalism only when it benefits their extremist conservative world view. Gone is any consideration of “a well-regulated militia” when the GOP needs NRA money. As the Roberts court takes us forward to the past, don’t look for judicial consistency. Just remember, outrage isn’t enough. The Court’s actions call for structural reform.

Sidney Plotkin is a Professor of Political Science, Margaret Stiles Halleck Chair of Social Science, at Vassar College. He is the author of many articles and several books, including Veblen's America: The Conspicuous Case of Donald J. Trump (Anthem Press, 2018). William E. Scheuerman is a Professor Emeritus of Political Science at SUNY Oswego. He is the retired President of the National Labor College and past President of United University Professions, the nation's largest higher ed union. A long-time labor activist, Scheuerman has written several books and numerous articles in both scholarly and popular journals. His most recent book is A New American Labor Movement: The Decline of Collective Bargaining and the Rise of Direct Action (SUNY Press, 2021). Read other articles by Bill Scheuerman and Sid Plotkin.