The Feinstein Paradox

Judge Gorsuch’s nomination hearings began today. Much could be said given all that was uttered from the dais, but I’ll keep my powder dry regarding most of it. I would like to focus on one highlight, however – I’ll call it the Feinstein Paradox.*

In her opening statement, Senator Feinstein highlighted “the 14 key cases where the Supreme Court upheld Roe[ v. Wade]’s core holding and the total 39 decisions where it has been reaffirmed by the court.” After entering these cases into the record, Senator Feinstein asserted, “If these judgments, when combined, do not constitute super-precedent, I don’t know what does.” Her point being that Roe is both old and settled – “In 1973, the court recognized a woman’s fundamental constitutional right to privacy,” and that should not be upended based on changing times or the shifting composition of the Supreme Court.

A few minutes later, Senator Feinstein opined,

Judge Gorsuch has . . . stated that he believes judges should look to the original public meaning of the Constitution when they decide what a provision of the Constitution means. . . . I find this ‘originalist ‘ judicial philosophy to be really troubling. In essence, it means that judges and courts should evaluate our constitutional rights and privileges as they were understood in 1789.

She went on to basically assert that the Constitution should not be understood as binding us to the so-called “dead hand of the past,” highlighting a few horrors and mistakenly conflating adherence to originalism with requiring acceptance of those evils.

Behold, the paradox! We should not be bound by the “dead hand of the past” when it comes to interpreting the Constitution, but we had better be bound by the “dead hand of the past” when it comes to respecting controversial precedent. As a reminder . . . .

Order Authorities

Something does seem to be amiss here, for sure – but I don’t think it’s Judge Gorsuch’s adherence to originalism.


* Senator Feinstein is by no means the first individual to engage in this sort of reasoning, nor will she be the last, so I’ll try to update this over time as others engage in the same sort of tendentious reasoning.

One comment

  1. Great analysis of her comments Joel. It is important to all of us that judicial scholars point these out to the public. Thanks!

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