After less than a month in office it is clear Donald Trump probably never read the United States Constitution and certainly does not understand it. Unfortunately, it contains more than the 144 characters that seems to define President Tweet’s reading level and attention span.
Democrats in the Senate are dithering whether they should all-out oppose Trump’s nomination of Neil Gorsuch for the United States Supreme Court. Gorsuch is an experienced federal judge so he has the technical qualifications. But his fundamental ideas about the Constitution make him dangerous to democracy and the rights of American citizens.
At his televised prime-time press conference Trump called Gorsuch “the very best judge in America” because he is a champion of original intent. But a close look at Gorsuch’s decisions show that somehow his notion of original intent consistently leads to conservative outcomes. One reason Trump picked Gorsuch is that he has never ruled on a Roe- v. Wade reproductive freedom case, so that he can pretend in Senate hearings that he will decide cases on their merits, not based on his ideology.
In a New York Times op-ed piece Senate Minority Leader Charles Schumer literally threw up his hands in frustration after a meeting where Gorsuch REFUSED to answer a series of questions about his judicial views. According to Schumer, “I asked him whether an unambiguous Muslim ban would be constitutional. He refused to answer. I asked him if he agreed with conservative lawyers who say the president has abused executive power. He refused to answer. I asked him whether he thought the president’s comments on voter fraud would undermine our democracy. He refused to answer. I asked him about landmark cases like Citizens United and Bush v. Gore. He refused to answer. Since he claims to be an originalist, I asked him about his view of what the framers intended with the Emoluments Clause in our Constitution. He refused answer any of these questions.”
If past Senate confirmation hearings are a measure, Trump and Gorsuch may well get away with this ploy. Senate hearings on George W. Bush’s nominees, John Roberts and Samuel Alito, shed little light on constitutional issues. Both nominees were praised for their intellect and “judicial temperament,” while they refused to answer questions about their philosophies. At a time when Bush and his supporters were trying to move the court significantly to the right, the public was being told that a judge’s ideas did not matter.
The issue that needs to be explored in Senate hearings is not whether someone has experience or looks judicial, but how Supreme Court Justices should interpret the United States Constitution.
The original “original intent” was that the Constitution is a guide and process for decision-making, not a restrictive 18th century template to prevent all government action forevermore. James Madison, one of its principle authors, explained its purpose is “To secure the public good and private rights” and “preserve the spirit and the form of popular government,” that is “the great object to which our inquiries are directed.” It was the only “original intent” of the framers.
The idea that the Constitution should be understood as a “living” document subject to continual reinterpretation was championed by Thomas Jefferson, the third President of the United States and one of the primary authors of the Bill of Rights. In a letter written in 1810 that is quoted on the walls of the Jefferson Memorial in Washington DC, Jefferson explained, “I am not an advocate for frequent changes in laws and Constitutions, but laws must and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”
I will repeat that last line for the benefit of President Trump, Republicans in the United States Senate, and the rightwing cabal now on the Court. “We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.” Those “barbarous ancestors” owned other human beings, denied women virtually any rights, and committed genocide against native people.
The most articulate opponent of the rightwing position on “original intent” was William Brennan, an actual conservative who was appointed to the Supreme Court by President Dwight Eisenhower in 1956. Brennan rejected the idea that it was possible to know “the intent of the Framers” and argued that “We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans.” He accepted the responsibility to “look to the history of the time of framing and to the intervening history of interpretation,” but felt “the ultimate question must be, what do the words of the text mean in our time?”
“The genius of the Constitution,” according to Justice Brennan, “rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time.” He felt that Supreme Court Justices had no choice but to “adapt our institutions to the ever- changing conditions of national and international life.”
The “original intent” of the framers had nothing to do with promoting family values and religious beliefs or a women’s ability to secure an abortion. No of those things were mentioned. It had nothing to do with examining the minds of the authors of the Constitution to uncover their deepest biases and moral indiscretions. It had nothing to do with searching the text for the real 18th century meaning of the words. The “original intent” of the framers was to create a government that would support our ability to read the Constitution in the only way that we can: as Twenty-first Century Americans. “The ultimate question must be,” as Justice Brennan argued so eloquently, “what do the words of the text mean in our time?”
Current Supreme Court Justice Stephen Breyer has also been sharply critical of justices who espouse “textualist” or “originalist” doctrines. In a series of lectures delivered at New York University in 2001, Breyer argued that Supreme Court Justices needed to focus on the consequences of laws and their decisions, and not just text. He warned “Literalism has a tendency to undermine the Constitution’s efforts to create a framework for democratic government” and is “inconsistent with the most fundamental original intention of the Framers themselves.”
Neil Gorsuch’s misunderstanding of the United States Constitution disqualifies him from serving on the United States Supreme Court. Every Democrat should commit to voting NO and do as much as possible to block the appointment. One concern is that Republicans will gut Senate rules if the Democrats fight back. Trump is demanding the “nuclear option” to prevent a filibuster and force his nominee through.
Be clear, if the Democrats back down now, Trump and the Republicans will use this threat every time a controversial issue comes to the floor. As demonstrators in front of Chuck Schumer’s Brooklyn apartment building shouted, Schumer and Senate Democrats need to “Get a spine!”
For more, watch the rapper Reeces Pieces on Youtube – “Gorsuch Too Much – Stump the Trump.”
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