Yes, I know this is my second post in a row about Gorsuch. I figure, when a guy is going to spend four decades on the Supreme Court, he’s worth talking about.
Let’s talk verbs for a minute: action words! Think about the difference between “inventing” and “discovering” If you’ve invented something, then you’ve created something new: something that did not exist before: so before J.K. Rowling invented it, Hogwarts did not exist. Whereas we say that Alexander Fleming discovered penicillin: that mold was there before, all he did was find it. Novelists, painters, sculptors, architects, and even engineers create things. Scientists discover things.We talk about our branches of government with the same words: Legislatures make policy. Judges find the law.
We run into problems however, when someone is inventing/creating something but claim to be discovering it. This is the problem with originalist jurisprudence. They think they are finding something but they are really creating something.