Would Justice Scalia or Abraham Lincoln have voted to put Judge Neil Gorsuch on the United States Supreme Court?


March 29, 2017

Editor’s note: The following blog post is authored by Kenan Heise, a Chicago journalist who has for decades illuminated the lives of poor people in his morally powerful writings. He has written for the Chicago Tribune and other major daily papers. Heise is the author of several books, including The Book of the Poor (2012) and his autobiography, He Writes About Us (2015), both published by Marion Street Press.)
Justice Antonin Scalia or Abraham Lincoln: which one’s approval would you want as an endorser of a nominee to the U.S. Supreme Court?

The question could be put to the present Supreme Court nominee, Judge Neil Gorsuch. He is often described as an “originalist,” an off-the-mainstream view held by a few libertarians and judges that courts should interpret the United States Constitution based solely on the original intent of those who wrote it over two centuries ago. Supreme Court Justice Antonin Scalia, the nation’s most vocal originalist, was in sharp disagreement with Abraham Lincoln’s application of our nation’s founding document.

In a November 2004 speech at the University of Michigan Law School, Justice Scalia’s preached his doctrine of originalism saying:

I believe it’s the only sound way to interpret the Constitution….I don’t have to prove it’s perfect; I just have to prove that it’s better than anything else.…Oh, how I hate the phrase we have—a “living document.” We now have a Constitution that means whatever we want it to mean.

So the presumption might well be that the late Justice Scalia, if in a position to do so, would vote for the originalist, Judge Gorsuch, to replace him on the top court.

Abraham Lincoln, on the other hand, was a bird of a different feather. In arguing against slavery being extended into new states being added to the Union, he clearly opposed originalism. In his Cooper Union Speech on February 27, 1860, Lincoln stated:

Now, and here, let me guard a little against being misunderstood. I do not mean to say we are bound to follow implicitly in whatever our fathers did. To do so, would be to discard all the lights of current experience – to reject all progress – all improvement.

Unlike Justice Scalia, Lincoln saw the need to interpret the Constitution as living and growing, contemporaneous with progress and human development. Lincoln’s human, sensible and living understanding would indicate that Judge Gorsuch, with his originalist views, would not get Abraham Lincoln’s vote.


U.S. Supreme Court