What Gorsuch Should Have Said

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Author: Paul Gottfried

As the confirmation hearings of Neil Gorsuch grind on, and as he continues to be grilled by Democrats, he has allowed himself to be bullied by California senator Diane Feinstein, without responding in kind. Feminist and gay rights advocate Feinstein defends a ‘living constitution,” that is, one that allows courts to enact her PC wish list without having to worry about elected legislatures. And she seems upset that Gorsuch would interpret the Fourteenth Amendment too narrowly. The Colorado judge, she complains, would stray as an originalist into arguing the equal protections clause does not apply to groups that its framers didn’t have in mind when they drafted that amendment after the Civil War. Thereupon Gorsuch denied that he wished to return us to the horse and buggy days.” He knew full well that some of the drafters “were racists because they were or sexists because they were,” but as a Justice he would interpret the equal protection clause as pertaining to all persons, including gays.

Gorsuch missed an opportunity to provide his interrogator, to use Obama’s pet phrase, with “a teaching moment.” He should have pointed out that judging by present eccentric standards of political correctness, everyone in the past was a bigot. Aristotle, Immanuel Kant, FDR, Harry Truman, Karl Abraham Lincoln, and JFK. Which one of these now honored figures believed in gay rights, interchangeable gender roles or the right of a young man who says that he/she’s a woman to have access to girls’ showers in a public school. Which one of these figures would have defended the inalienable constitutional right of an illegal immigrant and felon not to be deported, the way Feinstein’s constituents do? Gorsuch should have explained that we’re living in strange times when rights have been inflated to a point where they’re being used to subvert what Americans up until a few decades ago would have considered normal family arrangements. Of course, the drafters of the Fourteenth Amendment didn’t have any of Feinstein’s expanded rights in mind. But then nobody back then did, including revolutionary socialists and civil rights crusaders.

Gorsuch should have asked the California custodian of multicultural orthodoxy whether she believed there were limits beyond which the Fourteenth Amendment should not be invoked for the purpose of expanding our supposed freedom under a “living constitution.” Presumably, Senator Feinstein doesn’t give a rap about property rights, unless they’re her own, and especially when they come into conflict with “anti-discrimination” laws or interfere with the wishes of public sector social engineers. But what about new lifestyle rights? Should judges extend equal protection to mother-son marriages? What about group marriages, in which everyone in a neighborhood decide to marry each other? What should be done to those who are offended by these arrangements, let’s say an Evangelical Christian couple who own a bakery but who refuse to bake cakes for a group wedding or an incestuous union? As far as I can see, there are no limits as to how far Feinstein and her allies would extend the equal protection clause in defense of their evolving social agenda, wherever it may lead.

I would also ask Judge Gorsuch why he thinks as an originalist that the Fourteenth Amendment should be applied to the enforcement of gay rights. The equal protection clause was certainly not written with gay rights in mind. It was intended to protect the rights of Negro Freemen to be secure in their property and to be able to serve on juries. As Harvard jurist Raoul Berger famously showed, the Radical Republican drafters of the Fourteenth Amendment were even loathed to extend its protections to women and expressed second thoughts about whether the amendment they were drafting required the desegregation of schools.

One may be justified as an originalist in defending particular legislation guaranteeing certain rights to gays and lesbians. But why would one believe these rights are covered by the Fourteenth Amendment unless one accepted Feinstein’s notion of the “living constitution”? Gorsuch has suggested that he is not an originalist, in the sense of not being bound by the original intention of the drafters of an Amendment. He looks at the stated words without being limited by what the drafter intended. But then we are still left with the question of how far this jurist would extend the equal protection clause in applying it to groups beyond Negro freemen. Does he believe, like Feinstein, for example, that it protects all forms of conjugal union between consenting adults? What are the claims to equal protection advanced by practitioners of expressive freedoms that he would reject as a judge?

But getting back to what Gorsuch failed to say to his leftist adversary: this, in my view, illustrates the fate of well-meaning, decent people like Gorsuch and most Republicans of my acquaintance who try be nice in responding to leftist zealots, who don’t care about the moral sensibilities and constitutional concerns of the rest of us. I’ve no doubt that the Colorado judge whom Feinstein, Franken and other PC enforcers have been pushing around could have thought of all my points. Perhaps he did but then tried to avoid giving offense. If Justice Scalia were sitting in his place, he would have put Feinstein immediately on the defense. And Scalia would have recognized that he would not be losing a single vote by going after this harpy. She wouldn’t be likely to vote for a non-leftist judge in any case.

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