Mr. Fix-It

There is an interview of Justice Gorsuch with the Wall Street Journal, a summary of which is available outside the paywall.  It is mostly one expects: bromides and bland statements that sound good but have no real content.  But that is to be expected.  Justice do not allow themselves (mostly) to talk honestly and frankly about their work or what theories they work with.  I do not quarrel with that diffidence, not today.  But Gorsuch goes on about originalism in constitutional law.  Like so many originalists on the bench, I wonder if he really means any of it.  The talk is always about the meaning being fixed at the time of adoption or ratification.  Like a creature caught in resin, and now available to us as an interesting piece of amber.  It is not, despite my tone, a question of good faith.  I don't see reason to think these folks are dissembling.  It is just that it is very hard to see how it is they get to their conclusions about basic features of the legal order they plainly do support -- equality of race and sex, for example.  Gorsuch says that Dredd Scott was awful because Taney did not find racial status in the Constitution.  The bar on citizenship for free Blacks was just not in the Constitution, and that is why Dredd is wrong.  It is valiant, and Gorsuch is far from alone in agile attempts to get Dredd Scott and Plessy and Brown onto the list of defensible orginalist decisions.  I do not see any of the efforts as getting close to success.  These attmept alwsy end up with some story of meaning in which those who adopted the Constitution (or some amendment to it) have little idea of what they are doing.  They don't understand the Constitution they adopted and whose meaning is fixed at that time by their adoption.  It looks like magic.  I am dubious that the meaning of a document at a time could be independent of the use of the language at the time, and use is application.  Concepts are not so bound I think, but the Constitution is not a concept.  It is not a list of concepts, or if it is, then originalism is pretty thin gruel, or more accurately, pretty dirty water.  I know it is a bit of recurring roundof complaints on the general topic -- the history if poorly done and too often wrong, there is no account of how the entire thing does not change when amended, there is no account of how it is one takes an oath to uphold something the person cannot understand by reading but has to have a special legal history (which is fake history), how it makes nonsense of the Constitution as political foundation, it is a sort of idolatry of law and lawyers, and on goes the list.  It is, in the end, for me, that if the Constitution is not living it really is a relic and the reliquary is in the courthouse.