Some Answers for Jeffrey Toobin
At The New Yorker, Jeffrey Toobin poses six questions Senators should ask Judge Gorsuch, most of them framed as supposedly "gotcha" questions for originalists. I'm sure Judge Gorsuch could do much better, but here are my suggested answers (Toobin's commentary is omitted here but the answers sometimes respond to it; also in the spirit of confirmation hearings I will not comment on cases that might come before the Court, as Judge Gorsuch surely would not):
1. During the campaign, President Trump repeatedly promised to nominate pro-life justices to the Supreme Court. Are you pro-life?
A: Textualist originalists seek the original meaning of the Constitution's text (with due regard to precedent). What they think about the underlying merits of a challenged law should be irrelevant to their decision. So it doesn't matter whether an originalist candidate is pro-life (or pro-death penalty, or pro-gun control, or pro- any other policy that might come to the Court). Indeed, an originalist judge might be particularly solicitous of the constitutionality of a law that person disfavored, or vice-versa, to avoid the danger that a policy preference might influence the outcome. In contrast, most forms of nonoriginalism depend to some extent on the policy assessment of the particular judge (so this might be a fair question to nonoriginalists).
2. Like Justice Antonin Scalia, you’ve described yourself (and been described) as a textualist and an originalist. The text of the Constitution does not directly refer to a right to privacy. Do you believe that the Constitution includes a right to privacy? [Note: in the commentary, Toobin says this question "puts textualists on the spot"].
A: A commitment to textualism (and originalism) does not entail a rejection of precedent. Justice Scalia said he would not disturb precedents "woven into the fabric of American law," and he frequently followed and applied precedents that do not seem justified by the Constitution's original meaning. People who are unduly alarmed by originalism as a practical method of judging often overlook this point. As to the right of privacy, regardless of its basis in the text, the Court has recognized it on multiple occasions (as Justice Scalia himself did). How far it extends is of course another matter, and that remains unsettled.
3. The authors of the Fourteenth Amendment, which guarantees the equal protection of the law and was adopted in 1868, almost certainly believed that racially segregated schools were permissible. Does that mean that Brown v. Board of Education was incorrectly decided? If Brown was correct, doesn’t that suggest that the meaning of the Constitution can change over time?
A: As Justice Scalia explained, ultimately what matters for textualist originalists is the text's original meaning, not what the framers thought about it. Their thoughts may be good evidence of what it means. in cases of ambiguity. But where the text is clear, a subjective intent cannot override it. In the case of segregation, Justice Harlan eloquently explained in dissent in Plessy v. Ferguson (1896) why it was banned by the plain language of the Fourteenth Amendment. Thus, even if it is true that the "authors of the Fourteenth Amendment" thought the Amendment allowed segregation (and, as an aside, that is by no means clearly true), the Amendment nonetheless means what its says. Thus Justice Scalia concluded that Plessy was wrong (and Brown was correct) as an original matter -- a view shared by many leading originalist scholars including Michael McConnell, Michael Paulsen and Steven Calabresi.
4. Is money speech? Can Congress or the states regulate campaign expenditures at all? Congress has banned corporations from contributing directly to political campaigns for a century. Is that ban constitutional?
A: Money is not speech but restricting the expenditure of money to circulate a message is a direct impairment of the ability to speak. This does not seem controversial. Presumably no one would say that Congress can prohibit a person from spending money on ink, paper or pens to write a letter protesting government action. Presumably no one would say that Congress can prohibit a group of people from spending money to print a newspaper. Nothing suggests that these restrictions would have been thought constitutional in the founding era. The scope of this principle is more difficult, however. Restrictions on contributions to a political campaign (which might then be used by the candidate to speak) are less obviously an infringement of speech, and the Court has said they are subject to reasonable regulation.
5. Do religious people have to follow laws that violate their consciences? Do they have to pay taxes? Do their children have to go to school? How do you decide which laws they can ignore, and which ones they are required to follow?
A: Here it is important to distinguish between constitutional requirements and statutory requirements. In Employment Division v. Smith, the Court, in an opinion written by Justice Scalia, held that religious people must follow generally applicable laws (that is, ones that do not single out religion) even if those laws violate their consciences. While that decision has been criticized on originalist grounds, it is now well-entrenched in precedent. So as a constitutional matter, the answer is "yes". After the Smith decision, Congress enacted the Religious Freedom Restoration Act (RFRA), to partially overrule Smith. The RFRA says that in some circumstances religious people do not have to follow federal laws that violate their consciences. The statute sets out the circumstances, although the statutory test is a little unclear; recent controversial decisions by the Court have been an interpretation of the statute. If Congress thinks the Court has interpreted the statute incorrectly, it can amend the statute to clarify.
6. We all know that when people arrive at our borders, they give up certain rights. For example, they certainly give up the right to protest about searches of their luggage. But do visitors give up all their rights, like the right to equal protection of the laws? Can we ban all black people from coming to the United States? All Jews? All Muslims?
A: U.S. citizens have an unqualified right to enter the country under Supreme Court precedent and the Constitution's original meaning. People who already have been approved to enter have a right to enter subject to losing that right based on individual circumstances, in accordance with due process. The issue is more difficult for non-citizens who have not been approved to enter. The Supreme Court has held that Congress' power to exclude aliens is "plenary" and that Congress can indeed exclude based on racial classifications (in the Chinese Exclusion case in the late nineteenth century). However, the Chinese Exclusion case was not an originalist opinion and it's doubtful if it is a precedent that should be respected.
[As my answers suggest, these questions are not the "gotchas" Toobin likely thinks they are. They're good questions, though, in that they allow a nominee to explain why originalism is not as scary an idea as many people -- Toobin included -- like to suggest].
(Via Howard Bashman at How Appealing, and also Mark Pulliam).