Questions for Supreme Court nominee Judge Gorsuch


WASHINGTON — This week, the Senate Judiciary Committee will question Neil Gorsuch about the judiciary’s role. Herewith some pertinent questions:

— Lincoln’s greatness began with his recoil from the 1854 Kansas-Nebraska Act, which empowered residents of those territories to decide whether to have slavery. The act’s premise was that “popular sovereignty” — majorities’ rights — is the essence of the American project. Is it, or is liberty?

— Justice Robert Jackson wrote, “The very purpose of a Bill of Rights was to … place (certain subjects) beyond the reach of majorities.” Was that not also the purpose of the 14th Amendment’s Privileges and Immunities Clause? It says: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Was this amendment’s purpose to ensure that the natural rights of all citizens would be protected from abridgement by their states?

— If so, was the court wrong in the 1873 Slaughterhouse Cases? It essentially erased the Privileges and Immunities Clause, holding that it did not secure natural rights (e.g., the right to enter contracts and earn a living), for the protection of which, the Declaration of Independence says, governments are instituted.

— Chief Justice John Roberts says the doctrine of stare decisis — previous court decisions are owed respect — is not an “inexorable command.” The ruling in Plessy v. Ferguson (1896), upholding racial segregation in separate but equal facilities, has been undone. Should the Slaughterhouse Cases ruling be revisited?

— The Ninth Amendment says: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Robert Bork said this is akin to an “inkblot” on the Constitution that judges should ignore. Do you agree? How can judges be faithful to this amendment? Was Madison correct that it should dispose us against a latitudinarian interpretation of Congress’ powers? Is the Ninth Amendment pertinent to, say, the right to earn a living free from unreasonable licensure requirements or other barriers to entry into an occupation?

— Other than a law that abridges a liberty enumerated in the Bill of Rights, are there limits to Congress’ power over interstate commerce?

— The Fifth Amendment says no property shall be taken “for public use” without just compensation. In the 2005 Kelo case, the court upheld a city’s seizure of private property not to facilitate construction of a public structure or to cure blight, but for the “public use” of transferring it to a wealthier private interest that would pay more taxes. Did the court err?

— Citizens United held that unions and corporations, particularly incorporated nonprofit advocacy groups, can engage in unregulated spending that is not coordinated with candidates or campaigns. Was the court correct that Americans do not forfeit their First Amendment rights when they come together in incorporated entities to speak collectively?

— Is it constitutional for Congress, by regulating political spending, to control the quantity and timing of political speech?

— You commendably believe that judges should adhere to the “original public meaning” of the Constitution’s text. Would you feel bound to follow a previous court decision that did not evaluate evidence of original meaning and was, in your view, in conflict with it? If not, would you be elevating the views of judges over those of the Framers?

— Oliver Wendell Holmes, a deferential, majoritarian jurist, said: “If my fellow citizens want to go to Hell I will help them. It’s my job.” Discuss.



Reader Comments ...


Next Up in Opinion

Opinion: Fraternity video exposes crumbling decency in society

PAWLEYS ISLAND, S.C. — Courage isn’t required to condemn the Syracuse University chapter of the Theta Tau fraternity for simulating a sexual assault on a disabled student. Video of this ape-ish display, now in wide circulation, should horrify anyone with an ounce of decency. That is, assuming people still recall what decency is. After the...
Commentary: Raising legal age limits won’t solve gun violence
Commentary: Raising legal age limits won’t solve gun violence

A national debate over gun violence has erupted in the wake of the tragic shooting at Marjory Stoneman Douglas High School in Parkland. Unlike past mass shootings, grieving and evidence-gathering have been superseded by fervent demands for gun control, with a particular emphasis placed on increasing age limits required to buy certain weapons. Under...
Commentary: Let pre-18 teens register to vote
Commentary: Let pre-18 teens register to vote

Along with turning up the heat in the national debate over gun laws, the horrific attack at Marjory Stoneman Douglas High School in Florida on Feb. 14 has introduced the nation to a new generation of articulate, passionate teenagers. Days after watching classmates get gunned down in their school, the Parkland massacre’s young survivors confronted...
POINT OF VIEW: A chance to get pension reform right

There is a crisis looming that has the potential to dramatically affect both the retirement benefits of millions of retirees as well as multiple states and communities. I am referencing the Multi-Employer Pension Plan crisis. What is a MEPP? They are pension plans collectively bargained (i.e., union pension plans) maintained by more than one employer...
Palm Beach Post editorial cartoon Wednesday, April 25
Palm Beach Post editorial cartoon Wednesday, April 25

CARTOON VIEW SIGNE WILKINSON
More Stories