Years ago, I met Akhil Reed Amar, the genius in my title above. I’d read his revelatory work, The Bill of Rights, and attended a lecture he gave.
What knocks me out about his scholarship is his gift at revealing truths in material I thought I more or less understood. That is, he makes me feel stupid, and I say that with gratitude and admiration.
And it’s with gratitude and admiration I give you his short, charming and powerful essay from Sunday’s New York Times, an essay on originalism, i.e., a sort of philosophy propounded by some judges as a way to interpret the Constitution. I see it as Prof. Amar’s genially warning finger-wag at Neil Gorsuch (and another kind of finger operation, which I describe later.)
But Professor Amar’s definition taught me something about originalism I hadn’t considered at all. Here’s how he explains it in a couple of excerpts but you really need to read the entire essay: What Gorsuch Has in Common With Liberals – The New York Times:
NEW HAVEN — The Supreme Court nominee Judge Neil M. Gorsuch describes himself as a constitutional “originalist.”
Originalists believe that faithful constitutional interpreters must build on the solid bedrock of the Constitution’s text, as that text was originally understood when drafted and ratified.
Now here comes the part where I said to myself, “Of course! How dumb could I have been?” [I’ve bolded the “how dumb could I have been” sentences.]
As [one] recent [Supreme Court] case, Pena-Rodriguez v. Colorado, illustrates, originalists must honor not just the original understanding of words ratified in 1787-88, but also the letter and spirit of language added by later generations of amenders. In Justice Kennedy’s words, the “imperative to purge racial prejudice from the administration of justice was given new force and direction by the ratification of the Civil War Amendments.”
So, as Prof. Amar says, an originalist must interpret the Constitution not simply by reading the 4500-odd words of the original Constitution itself, but by reading all twenty-seven Amendments. Prof. Amar is rightly extending the devotional term “founding fathers” to the people who fought, often literally, for the Amendments to the Constitution.
Then he takes on Scalia–in the nicest possible language–and describes him not as an originalist but as a false prophet. See if you can identify precisely where he gives Scalia the finger:
This willingness to give due weight to the original vision of amending generations — Reconstruction Republicans in the 1860s, woman suffrage advocates and other Progressive Era crusaders in the 1910s, civil rights reformers in the 1960s — is what separates true originalists from false prophets. Justice Scalia, alas, frequently failed this test, especially in cases involving women’s equality and other birthright-equality claims.
Too often, Justice Scalia stopped reading. He failed to read the Constitution’s text all the way to the end — to give due weight to its transformative amendments added by post-founding reformers. And he failed to read modern originalist scholarship that has conclusively disproved many of the historical canards that were prominent in the 1950s when he attended law school.
If this doesn’t knock your socks off, you’re smarter than I am.
So read it.