Time: Justice Neil Gorsuch: Why Originalism Is the Best Approach to the Constitution

Time: Justice Neil Gorsuch: Why Originalism Is the Best Approach to the Constitution

Originalism teaches only that the Constitution’s original meaning is fixed; meanwhile, of course, new applications of that meaning will arise with new developments and new technologies. Consider a few examples. As originally understood, the term ‘cruel’ in the Eighth Amendment’s Cruel and Unusual Punishments Clause referred (at least) to methods of execution deliberately designed to inflict pain. That never changes. But that meaning doesn’t just encompass those particular forms of torture known at the founding. It also applies to deliberate efforts to inflict a slow and painful death by laser….Or consider the Fourth Amendment. As originally understood, it usually required the government to get a warrant to search a home. And that meaning applies equally whether the government seeks to conduct a search the old-fashioned way by rummaging through the place or in a more modern way by using a thermal imaging device to see inside. Whether it’s the Constitution’s prohibition on torture, its protection of speech, or its restrictions on searches, the meaning remains constant even as new applications arise.