More on Gorsuch and the Dimaya CaseMichael Ramsey

At RealClear Policy, Nathan Chapman (Georgia): Neil Gorsuch and the Return of Rule-of-Law Due Process,  From the core of the argument:

While the holding [in Dimaya] was perhaps unsurprising, Justice Gorsuch’s solo opinion, which provided the crucial fifth vote, was remarkable in every way. It reveals a lot about Gorsuch as a constitutional jurist and reintroduces a cross-partisan notion of due process as a guarantee of the rule of law.

First, Gorsuch’s opinion was deeply originalist. His judgment was based on a searching review of legal materials that would have been familiar to jurists at the time of our country’s founding, including a number of early state and federal cases declining to apply vague statutes. His conclusion? The “void for vagueness doctrine … serves as a faithful expression of ancient due process and separation of powers principles the framers recognized as vital to ordered liberty under our Constitution.” Based on this opinion, Gorsuch appears to be every bit as committed to an originalist approach to constitutional interpretation as his predecessor, Justice Scalia, was — perhaps more so.

Second, Gorsuch married careful historical scrutiny with candor and sensitivity for how our legal system has changed over time. This is where he and Justice Thomas parted ways. Thomas’s dissenting opinion provides a careful historical argument against invalidating vague laws for lack of due process. He thinks such laws may be forbidden by the separation of powers, but not by the Due Process Clause. And, in any case, he thinks the courts should rarely invalidate a vague law, choosing instead to decline to enforce where it does not clearly fit the facts. This is a sensible view of the historical material, but it gives no weight to numerous changes to the legal system since the Founding. One cannot return to the Founding era’s constitutional understanding on a retail basis without unbalancing subsequent wholesale legal changes. ...

For a different view, Mark Pulliam at American Greatness: Has Gorsuch ‘Gone Wobbly’ Already?

Surprisingly, many legal scholars—even those on the Right—have applauded Gorsuch’s decision in Dimaya. I disagree. Even though I am a Gorsuch fan (e.g., here and here), I believe the dissenters in Dimaya were correct. ... As a policy matter, legislators should write statutes as clearly as possible, so that those subject to the law have fair notice of its commands. This principle is especially important in penal statutes, when imprisonment is a possibility.  

The problem, however, is the Constitution does not necessarily dictate the “ideal” result from a policy standpoint. “Originalism,” which the court’s conservatives purport to follow, means that the Constitution should be interpreted in accordance with its original meaning, not based on the justices’ personal policy preferences.

The Constitution—itself full of imprecise terms such as “unreasonable searches and seizures”—does not address the subject of “vagueness.” The court’s “void for vagueness” case law (of which Johnson is an example) is based on the due process clause of the Fifth Amendment, but the most straightforward view is that the Framers understood “due process” to require only procedural fairness (such as an impartial hearing). A poorly drafted statute will rarely result in a denial of procedural due process, as Justice Alito explained in his dissent in Johnson. Johnson is not dispositive in any event.

Unlike Johnson, Dimaya was an immigration case, not a criminal case. The statute in question, Section 16(b) of the Immigration and Nationality Act (INA), authorizes the deportation of foreign nationals who are convicted of specified violent crimes. Deportation—a civil matter—is not the same as imprisonment, and foreign nationals do not enjoy the same constitutional rights as citizens. Even if Johnson was correctly decided (and I think Alito’s dissent makes the far stronger case), it does not support—let alone compel—the result in Dimaya. A noncitizen facing deportation from the United States for committing aggravated felonies (as defined in the INA) is not entitled to the same “due process” as a citizen charged with a felony, facing either imprisonment or an enhanced prison sentence.

And further:

Why, then, did so many right-of-center scholars praise Gorsuch’s erroneous decision? (E.g., here, here, here, here, here, and here.) At the risk of stepping on some toes, I’ll offer several theories, in no particular order of primacy.

Libertarians, who greatly outnumber traditional conservatives in the legal academy, place little importance on maintaining national sovereignty; indeed, the leading libertarian think tank, the Cato Institute, unabashedly advocates open borders. Libertarians at Cato and elsewhere also support an aggressive judicial role in overseeing the political branches (sometimes called “judicial engagement”).  Result-oriented scholars tend to cheerlead for judges doing their bidding, and Beltway pundits and think tanks serve as the cheerleading squad.

Moreover, the current generation of right-of-center legal scholars (even the small number of conservatives and classical liberals) have largely abandoned the “judicial restraint” advanced by Robert Bork and Lino Graglia in favor of a “new originalism” that critics contend is just a disguised version of the Left’s “living Constitution,” allowing inventive constitutional law theorists to devise pseudo-historical arguments justifying policy outcomes they find congenial. Skeptics sometimes deride this as “law office history.”

(Thanks to Andrew Hyman for the pointer).

I must again protest the division of the originalist world into (as the last quoted paragraph says) "the 'judicial restraint' advanced by Robert Bork and Lino Graglia" and "a 'new originalism' that critics contend is just a disguised version of the Left’s 'living Constitution.'"  There is an intermediate position, surely represented by Justice Scalia and perhaps by Justice Gorsuch, that is not restrained in the Graglia sense (that is, it is very willing to rule against the political branches where the Constitution's original meaning warrants it) but is also far from living constitutionalism.