*This blog post was originally testimony before the Committee on the Judiciary of the United States Senate, Hearings on the Nomination of Judge Neil Gorsuch to the Supreme Court of the United States on March 23, 2017.
by William P. Marshall, Kenan Professor of Law, the University of North Carolina, Chapel Hill
The Air Force is unconstitutional. Brown v. Board of Education, 348 U.S. 886 (1954), was incorrectly decided. The Equal Protection Clause does not apply to women. The First Amendment does not protect speech on the internet or prevent persons from being forced to salute the flag when it conflicts with their conscientious or religious principles. The Constitution does not require one person/one vote. There is no freedom from government intrusion into such deeply personal decisions as to whether or not to have a child. There is no right to direct the raising and educating of one’s own children. The Fifth Amendment does not require the police to inform persons charged with crimes that they have a right to counsel. The federal government may discriminate on the basis of race and ethnicity without constitutional constraint.
These are just some of the results to which a strict adherence to “originalism” would lead. The vacancy created by the death of Justice Antonin Scalia, the Court’s most prominent proponent of organism, and the subsequent nomination of Judge Neil Gorsuch to fill that position, has once again brought the theory of “originalism” into the spotlight. It is therefore appropriate to reexamine the validity and legitimacy of originalism as a governing mode of constitutional interpretation. I will address that issue in the remarks that follow.