Senate set to vote on confirmation

Within a few days, U.S. senators will vote on whether to confirm federal appeals court Judge Neil Gorsuch to a seat on the Supreme Court. His opponents have a variety of criticisms of him, some voiced through rhetorical questions asked during his confirmation hearings.

Those who claim to fear Gorsuch are asking the wrong questions. They want to know if he is too pro-business, whether he will vote on the court against abortion “rights” and how he feels about immigration, among other things.

But the only truly relevant question is this:

Judge Gorsuch, do you believe the final say on the law of our land should be given to five men and women — or should it be up to the American people?

Gorsuch is the type of appeals court judge often referred to as an “originalist” or a “strict constructionist.” The terms are used to describe judges and justices who make their rulings based on the wording of the Constitution and our knowledge of what those who wrote it meant it to say.

On the other hand are those who believe the nation’s highest court should view the Constitution as a flawed, outdated document to be rewritten, in effect, in light of the many changes that have occurred since the document was adopted.

Gorsuch thinks so, too — but he does not agree with liberals who believe five Supreme Court justices, the number needed for a majority ruling, should have that power.

Those who want the high court to exercise that power want us to believe that without it, the Constitution can’t be updated as required from time to time.

But it can, and it has been.

In fact, the nation’s founders realized quickly the original Constitution, ratified in 1798, wasn’t a complete safeguard of critical freedoms. So they came back with the Bill of Rights, 10 amendments ratified in 1798.

Since then, 17 more amendments have been added. The most recent, the 27th Amendment, was ratified in 1992.

We’ve even realized that we made mistakes. In 1919, the 18th Amendment outlawed alcoholic beverages. By 1933, that measure had been repealed.

There’s a key word involved in all of this: “ratified.”

Our nation’s founders understood that for any change to be made to the basic law of the land, the Constitution, it needed to be something on which an overwhelming majority of Americans agreed. No passing fads, no tyranny of a small majority, were allowed.

So the ratification process was set up. It begins with Congress approving a proposed amendment, giving us all a voice through our elected senators and representatives. Two-thirds votes in both houses are mandated.

Then, three-fourths of the states, either through their legislatures or conventions of the people, must approve. Only then can the Constitution be changed.

Some people believe the ratification process should be handled by a majority of the nine Supreme Court justices.

Gorsuch is not among those with that philosophy. In essence, he thinks the high court should interpret the Constitution, not amend it.

For example, the court can interpret the First Amendment by ruling “speech” on the internet is covered by its protections. It cannot declare that just because the founders could not have envisioned an internet, all communication by government officials must be on paper.

If we want that, we’ll have to propose and ratify an amendment.

But we can do that. Under the liberals’ philosophy, the Supreme Court would be able to rule our amendment cannot be enforced as we wrote it.

The founders wanted a basic framework of government on which we could rely, unless we decided to change it. They understood the peril of a Constitution that could be altered by changing one person’s mind to achieve a majority vote on the high court.

That’s why how Gorsuch feels about any particular issue is immaterial.

What matters is how he feels about the Constitution.

Myer can be reached at: mmyer@theintelligencer.net.


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