The most important question for Neil Gorsuch

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Phoenix, Arizona

Resisting President Trump’s Supreme Court nominee is bound to be a losing game. The seat will be filled at some point, and Trump is not going to appoint a liberal justice.

But there are different strands of conservatism. George Will brings up an interesting question that should be asked of Supreme Court nominee Neil Gorsuch.

Quoting Lincoln, Will describes the Constitution as a frame of silver for a golden apple, which is the Declaration of Independence. That is, the Constitution details how we protect the Declaration’s ideal that everyone has equal natural rights.

Will criticizes President Reagan’s failed Supreme Court nominee Robert Bork. Bork disparaged the ninth amendment, which says that there may be more rights than are explicitly stated in the Constitution.

Will also criticizes late Supreme Court Justice Antonin Scalia‘s claim that democracy means majority rule with protection for “minorities only because the majority determines that there are certain minority positions that deserve protection.”

Scalia’s ideology seems to disparage natural rights. And certainly it ignores James Madison‘s statement that one purpose of the Constitution is that “the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.”

Scalia’s disregard for individual rights when the majority see fit not to grant these rights represents a powerful strand of conservatism – particularly social conservatism. And President Trump appears to be in this camp.

But other conservatives emphasize the word “unalienable” in the Declaration’s statement that everyone is “endowed by their Creator with certain unalienable Rights.” And considering Madison’s remarks in Federalist #51, the only way that Scalia-style conservatives can truly claim to be originalists is by denying that the Declaration of Independence is all that important to the Constitution which followed.

Will hopes that Gorsuch’s originalism will differ from Bork and Scalia’s by recognizing that natural rights are unalienable, meaning the majority can’t take them away. But note that is is about protecting natural rights, not the judiciary usurping Congress. This is Will’s conservatism.
We don’t yet know what kind of conservative Gorsuch is. I hope Congress asks him.