A Win for the Constitution

National Review Online

Tuesday, January 31, 2017

Neil Gorsuch, President Trump’s Supreme Court nominee, is a fine choice to replace the late, great Justice Antonin Scalia. He combines a sterling intellect and a fidelity to law.

That fidelity is what undergirds the “originalism” that Justice Scalia espoused and that Judge Gorsuch continues to practice. That term refers to the view that a legal provision — whether a statute or an amendment to the Constitution — should be read to have the meaning its words could be understood to bear at the time it became law. An official may apply an old law in new ways as circumstances change. But if he acts on an understanding of the law that differs from that original meaning, then he has illegitimately amended it. And the law is binding on judges no less than it is on other officials.

Originalism has faced resistance in modern times mostly because liberals would rather not go through the formal process of amending the Constitution in order to edit it to their liking, removing its structural limits on governmental power and putting their preferred policies beyond democratic review. Gorsuch’s record gives us cause to believe that he would use his vote and his voice to side with the actual Constitution.

And with our actual laws, such as the Religious Freedom Restoration Act. Liberals supported that law when it was enacted in 1993 but have subsequently found it inconvenient. Some judges have ruled that the Obama administration had not really placed a burden on Catholic nuns’ exercise of their faith by making them sign a form that enabled their employees to receive insurance coverage that covers contraception. Gorsuch, on the other hand, grasped that for the government to protect religious liberty means for it to stay out of the business of assessing the soundness of a particular religious belief: If the nuns sincerely say their faith forbids them to sign the form, it is not for the government to tell them they are wrong. Which is what the law, properly interpreted, holds.

Gorsuch has helped lead an overdue re-evaluation of the dangerous way unelected government agencies increasingly combine executive, legislative, and judicial functions. In this respect, too, he is a champion of the real Constitution, which was not designed for the convenience of the administrative state.

This nomination, even if successful, will not ensure that a sound understanding of the law or the proper role of judges prevails at the Supreme Court: It will merely restore the balance of forces that prevailed on the Court when Scalia died. But that in itself is no small thing. Gorsuch’s elevation would allow Scalia’s legacy to continue and gives it a chance to grow. Conservatives should give credit to Trump for this selection, and work to get Gorsuch confirmed.