Gorsuch’s chance to correct Scalia on the Constitution

With an asperity born of exasperation, Justice Antonin Scalia once wrote, “If you want aspirations, you can read the Declaration of Independence,” but “there is no such philosophizing in our Constitution,” which is “a practical and pragmatic charter of government.” Scalia was wrong, and much depends on Neil Gorsuch not resembling Scalia in this regard. Gorsuch can endorse Scalia’s originalism, construing the Constitution’s text and structure as it was understood by its framers and ratifiers, without embracing Scalia’s misunderstanding of this:

There is no philosophizing in the Constitution — until the Founders’ philosophy is infused into it by construing the document as a charter of government for a nation that is, in Lincoln’s formulation, dedicated to a proposition that Scalia implicitly disparaged as impractical and unpragmatic. The proposition is that all persons are created equal in their possession of natural rights, to “secure” which — the Declaration’s word — the government is instituted. In Lincoln’s formulation, the Constitution is the “frame of silver” for the “apple of gold” that is the Declaration. Silver is valuable and frames are important, but gold is more precious and frames derive their importance from what they frame.