look back to the original understanding. that informs us. or in the fifth amendment, just stevens in aprendy, wrote a very fine examination of the original history of the constitution, and said it s not right that an individual should be sentenced to prison, hand sentence on a base of facts a jury hasn t found. those are all originalist, if you want to put label on it, opinions. every one them. you could look at powell versus mccormick, that was written by chief justice warren. it was a very careful you might agree or disagree, but it is a very careful examination of the original history and understanding of the relevant provisions of the constitution. or heller, second amendment case. just scalia and justice stevens both, majority and dissent, wrote opinions that are
originalist seemed to betray constitutional text and history, most notable brown versus board of education the case that struck down segregation. but it s hard to reconcile with original understanding. judge gorsuch said i want to translate the original meaning into a world of new technologies. he kept citg the gps case the 19th century horse and buggy age. but the democrats are going to press him and say do you agree with the cases where justice scalia was a fatless originalist. do you see any reason, jeffrey in what we ve seen and heard so far from neil gorsuch, that this won t be not to diminish it in a any way, this won t be a net/net, basically no chaepg on the court from suitor to gorsuch? i think could be a change on the court. excuse me, from scalia. scalia to gorsuch.
the framers possibly imagined modern contrivances, modern contraptions. well, thermal images did not exist in the 1700s. right. the framers had no idea what it was. under the caricature that some of the democrats have suggested you would assume the originalists in the case would all line up on the side of saying well gosh the fourth amendment doesn t cover that. and yet the kilo case, the majority fin, 5-4 opinion was written by justice scalia, perhaps the leading originalist on the board. it was joined by justice thomas. and indeed, justice stevens dissented in that case. so i think that case illustrates that any judge doing his or her job, a thorough understanding of the original understanding of the language is essential to effectively doing your job. would you share your thoughts
to you. okay. let s go to another piece of this philosophy. that s originalism. in other words, whether words and phrases in the constitution should be interpreted according to their original public meaning or how the founders and their contemporaries would have understood them. regardless of whether you characterize yourself as an originalist you have applied originalism in several decisions including last year where in a separate concurring opinion you stribd the constitution as a, quote carefully crafted text judges are charged with applying according to its original public meaning, which are the buzz words for originalism. criticisms of the principles underlying originalismr not new. in fact i believe some lines from chief justice john marshal s opinion in 1819, let me two centuries ago are still relevant to our discussion of
suitor. but it is possible that judge gorsuch could check president trump in a serious way, whether it s on the executive order and the travel ban or some other form of executive overreach. judge gorsuch made clear he thinks the job of the judge is to enforce the constitution regardless of the politics. just as the guy who he is being nominated to replace, justice jackson voted to oppose trueman in the steel case. judge gorsuch says i believe in independence and i am willing to check the president. this may get textbooky, but what senator klobuchar was talking about was a kind of selective originalism. this is the kind of thing that bedevil a justice or a nominee who is very proud to call themselves an originalist. it s tough to apply in 2017. absolutely. and the democrats are right to note a series of cases where justice scalia the noted