Larry’s fallacy

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!

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About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
This entry was posted in Bayesian Reasoning, History, Law, Logical Fallacies, Politics. Bookmark the permalink.

6 Responses to Larry’s fallacy

  1. CHC says:

    Au contraire, mon Ami. You say “…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.” If the Supreme Court finds that segregation is unconstitutional and orders the Executive Branch to do something about it, the Executive Branch is NOT free to interpret the Constitution in its own way and defy the interpretation of the Court. Interpretation is specifically reserved to the Court. I am rather surprised by your statement and wondering whether I have misread you.

    • Brown v Board is a great example of judicial overreach. Indeed, the fact that so many public schools are still segregated speaks to the limits of judicial power. Also, any theory of originalism has a difficult time explaining Brown v Board. I will be blogging about the Brown case soon…

      • John Ashman says:

        Bzzzt. Incorrect. The 14th Amendment is clear and separate but equal only works when all parties involved believe it to be in their best interest, such as male/female sports, bathrooms, etc, which is to say, “no case, no controversy”. With Brown and Obergefell, the government was deliberately denying the rights of those who were being ostracized by the law.

        Sorry to deflate your wind bag, but you’re just making up strawmen with no basis in fact.

      • I appreciate where you are coming from, but why should federal courts be meddling with state marriage laws in the first place? I would argue that gay marriage, school choice, bathroom policies, etc. are all local questions (and political ones) beyond the purview of federal courts.

  2. John Ashman says:

    “the theory of public meaning originalism is pure bullshit.”

    You don’t even try to hide your bias and ignorance, do you? There are many people that may claim against all reason that 2 + 2 = 5, but that is not the rational or reasonable commonplace understanding. That many people disagreed with the WORDING of any given clause is a given, as they all had their suggestions and only one won in the end. But to say that they didn’t understand the language to which they OBJECTED, is absurd. Almost by definition, they understood it and that was the reason they objected. Hamilton wanted DRAMATICALLY more centralized power, so it is of absolutely no surprise that he would seek to get around prohibitions on expanding that power. At the same time, people like Patrick Henry felt the Constitution went way too far and it would be of no surprise if he were to attack provisions that he felt gave too much power to the government.

    Further, the Founders stated that the people, whose power rests in the 2nd Amendment, were the final arbiters and had the power to overthrow a government that ignored the Constitution. But in any case, yes, it is incumbent upon the Exectutive to understand the Constitution so he may veto unConstitutional law, and the Congress to understand it so they may not waste time and energy making unConstitutional law. But because the Supreme Court is uniquely authorized to JUDGE the law, they are the only ones with the innate power to declare that a law is unConstitutional and therefore, whether it remains or not, they will deny its authority every time it appears before the court. So, yes, a law may remain on the books, the Court has no power to have it removed, but it would be futile to attempt to enforcement at best, and a suicide show down with an armed populace at worst.

    I sincerely hope you’re not a lawyer, because that’s just pathetic.

    • I appreciate your comment. I will digest it and respond soon! (P.S.: I am a big fan of the Federalist Papers and think they should be required reading in the study of constitutional law.)

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