Just saw this interview with Justice Neil Gorsuch in which he says the Founders didn't think that judges were supposed to tell other people how to live.
It seems like a good line.
But it's actually wrong.
It seems like a good line.
But it's actually wrong.
When our country was founded, judges played a major role in telling people how to live their lives. They decided the substance of the vast majority of the law, including the criminal law.
To be sure, Congress and state legislatures sometimes passed laws. But the vast majority of law was judge-made law called "common law."
The Founders obviously knew the source of law when they created this country.
So Gorsuch is, to put it bluntly, wrong.
The Founders obviously knew the source of law when they created this country.
So Gorsuch is, to put it bluntly, wrong.
You can, of course, argue that it would be better to have people other than judges making law. And some of those arguments are probably quite convincing.
But you can't say that those are originalist arguments. The Founders thought judges were entirely legitimate sources of law
But you can't say that those are originalist arguments. The Founders thought judges were entirely legitimate sources of law
We've moved away from the idea of judges as primary lawmakers--both as a matter of practice and of doctrine. For example, the Supreme Court said that federal judges couldn't recognize common law crimes in 1812.
If you are interested in the historical record that shows how that 1812 case was a dramatic departure from what the Founders thought, then I highly recommend this masterful article by Univ. of Washington law professor Stewart Jay: scholarship.law.upenn.edu/cgi/viewconten…
And if you assume that the move away from common law crimes to codification was a positive development, I've laid out the reasons why I disagree in this new @VirginiaLawRev article: virginialawreview.org/volumes/conten…
@VirginiaLawRev As I explain in that article, the conventional wisdom is that Congress and the executive are better suited to make policy. But they largely fail to do so in the context of criminal law.
@VirginiaLawRev In any event, I'm disappointed that Justice Gorsuch doesn't appear to be familiar with early American history. And he is hardly alone. There are a number of people who consider themselves orgininalists who assume that the Founders shared their commitment to judicial minimalism.
@VirginiaLawRev (You can read the rest of the story about Gorsuch here: cnn.com/2019/09/10/pol…)
@VirginiaLawRev Just jumping back on the thread to note a couple of comments that I've gotten in response. Some folks are saying that Gorsuch is talking about federalism, not the role of judges. Maybe there are other ways to read the article. But Gorsuch has said similar things before.
@VirginiaLawRev For example, on Day 2 of his confirmation hearings he said that “judges would make pretty rotten legislators.” The relevant clip starts around minute 26: judiciary.senate.gov/meetings/nomin…
@VirginiaLawRev And even if you want to insist that he's talking only about the federal constitution and federal judges, then I'm afraid he's still incorrect. That's the point of the Stewart Jay article I linked to above. It's about common law in federal court.
