Supreme Court Gorsuch

Associate Justice Neil Gorsuch, President Donald Trump's first appointee to the high court, speaks to The Associated Press about events that have influenced his life and the loss of civility in public discourse, in his chambers at the Supreme Court in Washington, Wednesday, Sept. 4, 2019. Gorsuch has written a new book on the importance of civics and civility, and a defense of his preferred originalism method of interpreting laws and the Constitution. (AP Photo/J. Scott Applewhite)

Hal Bidlack

Hal Bidlack

I have spent the past 25 years or so dressing up in wig and tights and performing around the nation in a first-person show as Alexander Hamilton. The founding period of our nation is deeply fascinating (cough…HamiltonLives.com…cough). It was a time of radical ideas, like the crazy notion that all men are created equal. There is much to admire about the founding generation, and there are important lessons from that time that still ring true in the present day. 

But not everything…

For example, did you notice that sentence above that talks about all men being created equal? In 1787, there wasn’t much discussion about that now-sexist way of looking at things. But times change, which is kind of my point today.

Colorado’s own U.S. Supreme Court Justice Neil Gorsuch warned in the news recently against the dangers of “nine older people sitting in Washington making stuff up.” Now I certainly have issues with Justice Gorsuch even being on the Supreme Court, given the theft of the seat by Sen. McConnell, but I am not going to wander into that morass of opinion today. I will readily agree that Gorsuch is qualified, thoughtful, and caring, even as I disagree with him on, well, most stuff. I suspect we agree on the Broncos but little else.

But what came through in the article was what I see as a twisting of the meaning of the founding — a twisting that has served conservatives well, even as it is often profoundly hypocritical. Gorsuch told the reporter: “Your rights get lost when you depart from the original meaning. And then sometimes, wait, it gets worse. Not only does it take stuff away, it puts stuff in there that isn’t.” Let’s think about that for a moment, shall we?

Gorsuch is arguing that we should take the words and intentions of the Founders just as they said them — don’t invent “new” rights and don’t ignore old ones. There is part of that thinking that seems reasonable and it can be a seductive doctrine. But a bit of thinking outside the mindset of the 18th century suggests that not only are Gorsuch’s views inconsistent with the intent of the Founders, it is also dangerous for our future.

Conservatives love to rail against what they call “activist judges and activist courts.” They usually jump atop rickety soapboxes to declare as un-American any action taken by a court that they see as too liberal. But judicial activism is not about doing liberal stuff. Rather, it is the rejecting of court’s previous decisions and precedents and creating new interpretations of the Founder’s thinking. Sometimes this can be “liberal,” such as Brown vs. Board of Education which ruled that school segregation was unequal and therefore violated the Constitution. Score one for the liberals. But the Citizens United case, which gave corporations the same political free speech (and donation) rights as individuals, broke with decades of precedent, and was truly an activist decision. So judicial activism is in the eye of the beholder.

What about Gorsuch’s assertion that we should not read into the words of the Constitution more than is actually there? This strict constructionist model is the same one that the man who previously had his office, Justice Antonin Scalia, argued. Such a point of view is embraced by conservatives who wave “don’t tread on me” flags and complain about the government doing too much.

Well, let’s look at that notion, shall we? I was honored to spend a bit more than 25 years on active duty in the U.S. Air Force. But if one is a strict constructionist, and looks at the words of the Constitution, Article 1, Second 8, you find that the Founders only established an Army and a Navy. That made sense at the time, given that powered flight was well off in the future. Does that make my beloved Air Force unconstitutional? Was my service in violation of that document? 

Of course not, if you are not a strict constructionist, given the important “necessary and proper” clause also included in section 8. The Founders knew that they were limited by their own times, and that they could not imagine all the future needs of a modern America, such as an Air Force. 

Interestingly, conservatives drift away from the exact words of the Founders when it comes to guns. Recall that the Second Amendment talks about a “well-regulated militia.” Hamilton, in Federalist 29, argued that that militia of armed men would need to meet once or twice per year for military training and drill. That “strict construction” requirement is oddly missing from the NRA and other hard-right gun organizations.

Justice Gorsuch argues for a modern era governed by the thinking of the past. Yet we don’t use the medical knowledge of 1787 to bleed our children today. We don’t rely on the mechanical engineering knowledge of that day to build bridges, nor do we limit our design of aircraft to fit that long-ago age. But on politics, we are told, no evolution in thinking is allowed. That, my friends, is not only wrong, it is dangerous. 

Hal Bidlack is a retired professor of political science and a retired Air Force lieutenant colonel who taught more than 17 years at the U.S. Air Force Academy in Colorado Springs.

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