Courts

For An Originalist, Gorsuch Is Clearly Slacking On His Definitions And Their Historical Meanings

Is what he said stupid? Yes. But let's be technical here.

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958494Whether it’s calling millions of enslaved Africans “immigrants” or that one holiday that makes it seem like Manifest Destiny was a nice little meal shared between friends, American history has a… well, past of leaving aspects of the historical record at the wayside. And it’s not just history books that are propagating the bullshit — members of the Supreme Court are doing it too.

On Thursday, Justice Neil Gorsuch released his latest (and possibly final) cri de coeur against the pandemic-era restrictions that the government imposed to slow the spread of COVID-19…The justice’s rant in Arizona v. Mayorkas, however, hits a new low, moving beyond the usual yada-yada grievance parade to issue a thesis statement of sorts: “Since March 2020,” Gorsuch declared, “we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country.”

Now, this is a bold claim. Bold and wrong. What could explain this magnitude of error from one of the highest judges in the land? Mark Stern has a couple of theories:

I see four ways one might try to square Gorsuch’s declaration on Thursday with this horrific history. First, the justice may have meant what he said, and truly believes that COVID policies were a greater burden on civil liberties than slavery or Jim Crow. He does, after all, really hate wearing masks. Second, Gorsuch may have simply forgotten about the centuries-long subjugation of Black Americans (which originalists prefer to ignore, anyway). Third, he may have not considered these constitutionally sanctified, Supreme Court–sanctioned crimes against humanity as “civil liberties” abuses in the tradition sense; per this view, they were just the constitutional system at work as the founding generation might have envisioned. Fourth, he may have been attempting to cordon off the experiences of Black people and other historically abused minority groups as not having been a “collective” civil liberties intrusion experienced by all Americans (read: white Americans); note his choice of words in writing that “we” suffered civil liberties violations.

While I hear them, I propose a fifth explanation! Like Ice Cube’s “Today Was A Good Day.” I think we all know the song — Mr. Cube masterfully gives us a personal day in the life of a dude living in South Central. And while he never gives the specific day, internet sleuths have determined that the day he was referring to had to have been January 20th, 1992. Before I lay in to Gorsuch’s claim, it would be foolish to not pay heed to Gorsuch’s caveat of “peacetime” in this country’s history. While that clarification could sound like a bit of puffery to the average reader, it is actually a HUGE bracketing on the parameters Gorsuch can be referring to. Why? Because America has been at war for 232 of its 247 years of being. An immediate response to Gorsuch’s bullshit could be to say, “Well, what about slavery and the ongoing indigenous genocides that make everyone else’s ‘liberty’ possible?” It is an understandable one — but to be fair — we should limit our purview to the years 1796-1797, 1807-1810, 1826-1830, 1897, 1935-1940, 1976-1978, and finally, 1997-2000. If you wanted to give 2020-2023 to Gorsuch as a courtesy, you could — I just won’t because of the “culture war” narrative that’s been being shoved down our throats during this period. It also gets a little iffy if you include proxy wars like the Xinjiang Conflict.

Anyhoo… yeah, Gorsuch was definitely wrong. Blindingly so. Slavery and native genocide, in so far as they are great intrusions on civil liberties (they most definitely are), were definitely in effect during the “peacetime” years:

As Vox’s Ian Millhiser quickly pointed out, this sweeping claim leaves out two “intrusions on civil liberties” that any person with a basic grasp of history and sanity would surely rank as worse than pandemic policies: slavery and Jim Crow. During slavery, which was not only condoned but also practiced by Supreme Court justices, people of color were held in bondage; beaten, kidnapped, tortured, raped, and murdered; denied all civil rights, including freedom of speech and religion; denied the right to vote, participate in democracy, even claim American citizenship; robbed of their children; and barred from marriage—in short, denied life, liberty, and property without due process of law from birth until death. During Jim Crow, Black Americans were still subject to brutal, often lethal violence, both state-sponsored and vigilante; still denied the right to vote; still robbed of fundamental freedoms like speech and religion; still subjected to ruthless, degrading segregation in all public spaces; and still subject to severe economic exploitation, the effects of which endure today.

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Now — again, just to be technical — it wouldn’t be in good faith to mention Jim Crow without caveat. It lasted from around 1865 to 1968 and, because of the coupling of America being at war for about 90% of the time it has drawn breath and Gorsuch’s “peacetime” caveat, I think that it would only be fair to say that Gorsuch was wrong for about six years’ worth of time, that being the period of 1897 and 1935-1940.

It is worth browsing through Stern’s article to see Gorsuch’s shit takes on civil liberties laid out all jurisprudentially and such. I just wanted to run the numbers a bit.

Neil Gorsuch’s List of “Civil Liberties Intrusions” Is, Uh, Missing a Few Things [Slate]
Only 15 Years of Peace In The History of the United States of America [Medium]

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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