Justice Gorsuch and Moral Reality
33 Pages Posted: 20 Dec 2018 Last revised: 28 Mar 2019
Date Written: December 2, 2018
Despite his advanced academic training in ethics, Justice Gorsuch has stoutly, repeatedly, and properly denied that officers today have any power to override the original meaning expressed in statutory or constitutional text in the name of contemporary moral considerations. However, moral reality can still be relevant to interpretation if we acknowledge—as we should—a gap between textually expressed meaning and the fact-dependent collection of tangible applications falling under that meaning. Moral reality can also be important as an empirical guide to original meaning to the extent that we attribute moral virtue to the Framers and as a consideration for when we should overrule precedents. This Essay considers what Justice Gorsuch’s first year and a half on the Court tells us about his understanding of the relationship between interpretation and moral considerations. His deep respect for tradition as an ethical guide frequently makes it difficult to tell whether he reads the Constitution as referring directly to tradition, right or wrong, or instead reads it to refer to moral reality, which he then uses tradition to fill out. Either way, Justice Gorsuch’s willingness to go his own way interpretively will render his methodological approach of lasting concern to our constitutional culture.
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