Out of touch law professor criticizes Judge Gorsuch and “originalism.”

[Peter1469]

Out of touch law professor criticizes Judge Gorsuch and “originalism.”

The Volokh Conspiracy pens this highly technical article about constitutional originalism and the misunderstandings rampant about the legal school of thought. It is a long but interesting read.

Be this as it may, if Professor Lempert’s critique of originalism is what we have in store when the Senate Judiciary Committee hearings commence on March 2oth, it is useful to see how far his criticisms are from his target. He begins:

Is Neil Gorsuch an “Originalist”? Impossible.
If by “originalist” one means a judge who interprets the Constitution the way its Framers intended, Judge Gorsuch is no originalist. Neither was Justice Scalia, the original “originalist.” No judge is or can be. Too much has happened since 1789.

Few originalits today claim to be seeking to “interpret[] the Constitution the way its Framers intended.” Instead, as pioneered by Justice Scalia when he was still on the DC Circuit Court of Appeals, they seek the “original public meaning” of the text. So you can pretty much disregard the rest of Professor Lempert’s critique. He all but admits he is will be attacking a straw man. The Straw Man Fallacy is this:

1. Person A has position X.
2. Person B presents position Y (which is a distorted version of X).
3. Person B attacks position Y.
4. Therefore X is false/incorrect/flawed.

This sort of “reasoning” is fallacious because attacking a distorted version of a position simply does not constitute an attack on the position itself. One might as well expect an attack on a poor drawing of a person to hurt the person.

Professor Lempert continues:

It is largely a critic of a Brookings Institute article claiming that Gorsuch is not an originalist. Read the entire article.