Chris,

Thanks for the thoughtful response. What you are pointing to is the on-going debate that has been occurring regarding the interpretation of laws and the Constitution. On the one side are the originalists, who believe that we need to interpret laws and the Constitution based upon the intent of those who drafted those documents. Thomas is the ultimate originalist. On the other side are the pragmatists, who believe the law needs to be interpreted based upon how we would understand it today. Ginsburg, Kagan, Breyer and Sotomayor would likely fall into that camp.

You might want to see this summary of the two positions:

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.html

Gorsuch opposes both those groups. And unlike some Supreme Court Justices, he has a coherent judicial philosophy. He raises the issue that under our constitution, people need to know whether they are violating the law or not. Indeed, the Constitution’s ban on ex post facto laws, and the courts’ tendency to overrule laws based upon their “overbroadness” support this point. But Gorsuch asks how can you know whether you are violating the law if you must interpret intentions?

As a result, Gorsuch offers a different approach. Rather than trying to read the mind of law drafters or current judges, simply apply the law as it is written. Although I disagree with his approach in general, he has a point, and he has committed himself to this principle.

Hope this is helpful.

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Mike is an Assistant Professor of Management for Legal and Ethical Studies at Oakland U. Mike combines his scholarship with practical experience in politics.

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