Is Gorsuch an originalist? Not so fast

To oppose assisted suicide and euthanasia, Gorsuch’s book relies mostly on moral and pragmatic arguments, not on originalism. The book devotes just two pages to English and American common law but dozens of pages to fairness and equal protection and to “the law of unintended consequences.” His concern is the (irrevocable) danger of mistake, abuse or coercion, whether by zealots, family members, unqualified or biased physicians, or insurers, as well as lack of viable standards.

Gorsuch’s 2016 law-review article reflects uncompromising originalism. For him, the Constitution makes an emphatic distinction between lawmakers and judges, with the latter simply enforcing the law and not writing it; judges should stick to enforcing the law and not be creative. To Gorsuch, a failure to adhere to originalism makes a judge a “pragmatic social-welfare maximizer” and leaves us “only with a radically underdetermined choice to make.” But he exaggerates. Non-originalist judges rely on precedent, history, the language of the Constitution and consequences. Gorsuch’s description is a caricature of the majority of justices.

Gorsuch’s originalism ignores the enormous problem of ascertaining what the law and practice were around 1790. How would the founding generation answer contemporary questions, such as applying the Fourth Amendment’s search-and-seizure clause to a device that detects heat emanating from a building in an investigation into unlawful cultivation of marijuana?

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