• Rich Barlow

    Senior Writer

    Rich Barlow

    Rich Barlow is a senior writer at BU Today and Bostonia magazine. Perhaps the only native of Trenton, N.J., who will volunteer his birthplace without police interrogation, he graduated from Dartmouth College, spent 20 years as a small-town newspaper reporter, and is a former Boston Globe religion columnist, book reviewer, and occasional op-ed contributor. Profile

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There are 8 comments on Should Trump’s Supreme Court Nominee Be Confirmed?

  1. I agree completely with the notion that the laws should prevail for our society today. Originalism is a failed concept when we try to apply law of the 1700s to the world today. I appreciate Professor Beermann’s insights and opinions here.

  2. How about asking him his opinion as to the Senate’s consitutional duty to have acted on Obama’s Supreme Court nomination? What does an originalist say about that?

  3. If there were anything in the Constitution saying anything about property-owning white men, the argument against originalism might make some sense. However, it’s really not there. Moreover the framers were obviously not myopically bound to the 18th century – they used all the history they had available, particularly classical Greece and Rome. They wrote the Constitution for human nature, which until Marx and Nietzsche convinced many they had a better option, was thought unchangeable. The framers wrote the Constitution for eternity, and you can see this in how it was devised and written. Anyone who sees scattered, semi wilderness colonial America in the Federalist papers needs a new eyeglass prescription. Pennsylvania as a whole, including the largest colonial city of Philadelphia, didn’t even have 500,000 people in 1789, whereas just the city of Rome in the first century may have had 800,000 or more. Reading the Federalist papers, one can clearly recognize the huge mobs, wealthy cabals, and devious tyrants of the Roman era, the butcherous excesses of Cromwell, the vicissitudes of Athens, and the totalitarianism of Sparta. The Federalist papers were constantly balancing the mob against the elites – that ought to sound pretty current, right?

    1. That said, I don’t agree with originalism as the one right way to interpret the constitution. I think it’s a guide post, but with the Second Amendment, for example, the Framers had no idea what modern weaponry would look like and how it would be used against innocent civilians. In that case, I would argue that Framers’ intent alone is not adequate and for an intelligent result, we need to take into account present day context and allow some regulation of gun ownership in the U.S. This is but one example, and I believen there are many others that require a hybrid approach to analyzing the constitutionality of the given legislation. That said, given only what I know of Judge Gorsuch from media sources, I would vote to confirm because given his other qualifications I don’t believe his reliance on originalism is enough to vote against his appointment.

  4. While this article was insightful and I can appreciate his views. However regarding the question: If you were a senator, would you vote to confirm Judge Gorsuch? Dr. Beermann like most lawyers doesn’t answer the question so the reader can logic his answer.

  5. I think this is a good and cogent discussion of the nominee and what might be a good role for the Senate.

    My concern with this analysis, and with many of the analyses about the nomination is the notion that Gorsuch is replacing Scalia, one very conservative originalist for another, and therefore no big deal. Implicit in that notion is the idea that the Court’s ideological make-up is cast in stone when it should not be that way.

    I would be interested in how we think Gorsuch, based on originalism (which by the way I also think it an inadequate way of interpreting the constitution), would vote on some of the most important cases of the past such as Brown v. Board of Ed. and Baker v. Carr. If we think he would have been a dissenter, then the Senate should reject him.

  6. ‘Right to bear arms’ is mentioned in the Constitution but ‘Right to an abortion’ must be in invisible ink on the back of the document. It, abortion, gay marriage,… does fit under the Tenth Amendment of the Constitution.

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