The Selective Originalism of Judge Neil Gorsuch: A Review of the Record
Judge Neil Gorsuch has styled himself as an originalist cut from the same mold as Justice Antonin Scalia. To those on the right, this makes Gorsuch an ideal nominee: brilliant, scholarly, and an impassioned defender of the Constitution. The problem is that Gorsuch’s record—reflected in his opinions and other writings—suggests that he is a selective originalist, committed to following only some of the Constitution’s text and history. Judge Gorsuch will therefore have a heavy burden to meet when he testifies before the Senate Judiciary Committee: he can’t simply call himself an originalist; he has to demonstrate that he is committed to following the text and history of the whole Constitution where it leads—both the Founding documents as well as the Amendments that transformed the Constitution.
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