Note: this is the first in a series of five blog posts responding to Larry Solum’s defense of public meaning originalism.
Our friend and colleague Larry Solum, a law professor at Georgetown, recently wrote this statement on behalf of Neil Gorsuch, the judge who President Trump has nominated to the Supreme Court. As of today (3/28), Professor Solum’s statement has been downloaded over 3000 times, but it is so full of errors, strawmen, and logical fallacies that we feel compelled to write up a brief reply. For now, we will point out the three most obvious problems with Solum’s statement in support of public meaning originalism.
To begin with, Professor Solum commits “the fallacy of judicial supremacy.” (See meme below.) That is, Solum incorrectly assumes that the Supreme Court has the “last word” when it interprets the Constitution, or in Solum’s words, “the awesome power entrusted to our Supreme Court–the power to have the ultimate say in constitutional cases …” (p. 6). Although this view of judicial supremacy is common among members of the public, Prof. Solum should know better. As a matter of constitutional structure, the Supreme Court is but one co-equal branch of government, and as a logical matter, the other branches are in no way bound by the Delphic pronouncements of the Supreme Court. If anything, each branch has a stand alone constitutional duty to interpret the Constitution.
Another major problem with Solum’s statement in defense of Judge Gorsuch is that the theory of public meaning originalism is pure bullshit. Solum says that “Judge Gorsuch believes that the meaning of the constitutional text is its public meaning–the ordinary or plain meaning the words had to the public at the time each provision of the Constitution was framed or ratified” (p. 1, emphasis in original). But, in reality, this version of originalism is just as political and amenable to abuse as “living constitutionalism” is. Why? Because there is no one, cohesive, single “public” out there. In truth, there are many possible publics (plural), and public meaning originalism does not specify which particular “public” or faction a judge should privilege when attempting to find the public meaning of a text.
The worst problem with Solum’s sanctimonious statement, however, is its blatant hypocrisy. He writes: “Once we start selecting Supreme Court Justices explicitly based on ideology, it will become progressively more difficult to select men and women of integrity who respect the rule of law” (p. 12). Ha! If Solum really cared about the over-politicization of the Supreme Court, then he would have taken the time to denounce the Senate’s shabby and unfair treatment of Judge Merrick Garland, President Obama’s 2016 nominee to the Supreme Court. The Do-Nothing Senate Judiciary Committee refused to even give Judge Garland a hearing last year–let alone an up or down vote–on purely political grounds!