Everyone seems to have a set of questions the Senate should ask Judge Gorsuch. Many of them involve originalism (thanks for all the free publicity, Judge!). Here are a few highlights:
At Politico, Jeff Greenfield: What the Senate Should Ask Judge Gorsuch -- A few good questions could rescue the Supreme Court hearings from the charade they've become. On originalism:
Asking Gorsuch point-blank whether he believes in “originalism” or views the Constitution as a “living” document is an invitation to a linguistic tap dance. A better course would be to frame the issue specifically. For instance:
“The Eighth Amendment forbids ‘cruel and unusual punishment.’ But it doesn’t define the term. If a punishment like flogging or branding was a regular feature of 18th century criminal justice, would that mean a court could not forbid it under the Eighth Amendment today?”
Or, “Interracial marriage was outlawed by 16 states for a century after the 14th amendment and its equal protection clause was adopted. When the issue came before the Supreme Court in 1967, the ban was unanimously struck down. Did the court have to find that legitimizing interracial marriage was the ‘original intent’ of the drafters in order to reach its decision?”
Either question would make clear where originalism finds its most difficult challenge, and might help provide a clue to how Gorsuch works through such a challenge.
Actually these are both pretty unhelpful questions. On the first, as I've noted, "unusual" could have (at least) two possible original meanings. One is Justice Scalia's -- that it referred to particular kinds of punishments: punishments that were aberrational at the time of enactment. Another is that it referred to punishments that are aberrational at the time the punishment is imposed. I think a conventional originalist could have either view, depending on one's perception of what motivated the amendment. (For more extensive discussion, see here from John Stinneford).
On the second, (a) what is it with commentators and "original intent"? How many times must one say that the touchstone of modern originalism is the original meaning of the text, not the framers' intent disconnected from the text? To be clear, the answer the the question posed in the last sentence of the paragraph is "no." Period. (b) Post-ratification practice is evidence of original meaning, but it's not conclusive evidence. The fact that "16 states" [not actually that many, plus how many were ex-Confederate States?] outlawed interracial marriage might only be evidence that many states did not live up to their constitutional obligations. The question is whether the original meaning of the Fourteenth Amendment barred laws against interracial marriage. I think most originalists (including Scalia) would say it did, based on the text itself and the Court's early interpretations in cases like Strauder v. West Virginia. (See here for more extensive analysis from David Upham).
In sum, originalists have thought about these issues in depth. They simply aren't material for "gotcha" questions.
The Los Angeles Times does better in an editorial, asking (among others) these questions:
For example, to Americans in the 19th century, the “equal protection of the laws” guaranteed by the 14th Amendment might seem to protect only racial equality; in the 20th century it seemed obvious to many Americans that it also prohibited some forms of sexual discrimination. Does Gorsuch object to that updated interpretation? Does he believe that a constitutional provision must be viewed through the eyes of the generation in which it was adopted and can't be interpreted to deal with situations its authors never could have imagined, such as cellphone GPS signals being used to track suspects without a warrant?
These are both pretty tough questions and the answers would reveal a tendency toward one or another camp within originalism. On the sexual discrimination point, some (like Justice Scalia) would say that is so far outside the framers' idea of equality that the Fourteenth Amendment can't cover it, and updating (if thought appropriate) must be done by amendment or legislative processes, not by unelected judges. Others (like Michael Paulsen) would say that the plain meaning of equality includes equality for women (as many people, especially many women, recognized at the time of enactment), even if post-enactment men did not live up to that aspiration. (In my view an even better question is what the nominee thinks of Obergefell v. Hodges, the same-sex marriage case, as a matter of originalism: this really gets at the question of how much changing understandings of facts allows outcomes completely unanticipated by the framers -- see my discussion here).
The second question the Times poses is also hard, although it's mangled by the tendentious phrasing: of course all conventional originalists think that the Constitution can "be interpreted to deal with situations its authors never could have imagined." Originalism does not fail to accommodate technological change, as Justice Scalia made clear in District of Columbia v. Heller, for example (holding that the Second Amendment protects the right to "keep" modern arms that were unknown in the founding era and dismissing the contrary argument as bordering on the frivolous). But there's a substantial question how far this goes. In Kyllo v. United States, for example, the question was whether the Fourth Amendment required the police to obtain a warrant before using infrared technology to measure the heat coming from a private home (high heat levels suggesting drug-growing operations). Justice Scalia said the original meaning of the Fourth Amendment required a warrant; Justice Thomas thought it did not.
One observation from all this is that originalism has extensive internal debates about how far it extends the Cosntitution's text into modern controversies. Commentators (and aspiring question-writers) would do well to work within these debates to formulate truly meaningful questions instead of trying to play "gotcha" in areas where thoughtful originalists will already have well-considered answers. The questions for Judge Gorsuch should try to locate him on the spectrum of modern originalism in terms of how far he would go apply the text's original meaning in ways unanticipated by the framers. All originalists are willing to do this to some extent, but some more so than others. If one really cares what sort of Justice Judge Gorsuch will be, this is an area to investigate.
RELATED: Other interesting sets of originalist-oriented questions from Ilya Somin here, and Ramesh Ponnuru here.