Justice Neil Gorsuch: A Republic, If You Can Keep It
CONTENTS
Justice Neil Gorsuch: A Republic, If You Can Keep It [jpg]
Six Videos From Six Venues…2
A Few Friendly Questions For Supreme Court Justice Neil Gorsuch…2
The introductory comment on National Constitution Center’s YouTube page September 17, 2019…3
Is “Born” Exclusive or Inclusive?…4
→ #1) Ronald Reagan Presidential Foundation and Institute…5
My comment about “Brown v. Board of Education”…6
Originalism and the Desegregation Decisions – Michael W. McConnell [url]…6
Originalism and Brown V. Board of Education – Steven G. Calabresi & Michael W. Perl [url]…6
The Problematics of the Brown-is-Originalist Project – Ronald Turner [url]…6
My comment about relating “your rights” to eligibility to be president…7
→ #2) Richard Nixon Presidential Library and Museum…9
My comment about a “republic”…10
→ #3) U. S. National Archives…14
My comment about “original public meaning”…18
My comment about the “epitaph”…26
→ #4) National Constitution Center…26
My comment about “holding fast to forever”…30
→ #5) George W. Bush Presidential Center…32
My comment about Prof. Amar’s “living, unwritten constitution”…35
→ #6) LBJ Foundation…37
My comment about eligibility to be president and “is originalism tough?”…39
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Six Videos From Six Venues: A Republic, If You Can Keep It was published September 10, 2019. Listed here are six videos from six venues where Justice Gorsuch discussed his book before large, friendly, respectful crowds. Use REAL.com to download the videos with the free RealPlayer for Windows and mobile phones from the websites while they are available. (This is not an affiliate promo, just a suggestion.)
#1) Ronald Reagan Presidential Foundation and Institute
→ Posted September 11, 2019 → https://www.youtube.com/watch?v=JL-p0RJqxcg
#2) Richard Nixon Presidential Library and Museum
→ Filmed September 11, 2019 → https://www.youtube.com/watch?v=WsPBJtrlSOc
#3) U. S. National Archives
→ Posted September 16, 2019 → https://www.youtube.com/watch?v=_Uf6PEZU3QE
#4) National Constitution Center
→ Posted September 17, 2019 → https://www.youtube.com/watch?v=wR9Q-Xm7JJE
#5) George W. Bush Presidential Center
→ Posted September 18, 2019 → https://www.youtube.com/watch?v=iYM6a6aY6fo
#6) LBJ Foundation
→ Posted September 20, 2019 → https://www.youtube.com/watch?v=kNpk3pRHKLg
In this section are partial transcripts from each video where Justice Gorsuch refers to 1) access to justice, 2) common law, 3) due process clause, 4) equal protection clause, 5) living constitutionism, 6) originalism, 7) original public meaning, 8) rule of law and law of rules, 9) separation of powers, 10) textualism, etc.
I transcribed the YouTube interviews to see how Justice Gorsuch refers to the same subject in the different discussions to get a better understanding of his point of view, and how he might opine in a friendly kitchen tabletalk setting if he were asked a question about what he thinks determines eligibility to be president in Article II, and how “original public meaning” applies to the word ‘born’ in “natural born Citizen”. Judge Gorsuch was not asked by the interviewers about “natural born Citizen” and he never referenced Article II and eligibility to be president or the eligibility debates which started in 2008.
Located within some of the comments by Justice Gorsuch are my own questions and comments about eligibility and “natural born Citizen”, including what I call the implicit original genesis and original intent of various words and issues. Copy the text to your computer and add your comments. All I ask is to not change any word in my comments. The text of the selected parts of the 1868 Civil Rights Act text and the three amendments (13, 14, 15) is in the public domain:
→https://memory.loc.gov/ammem/amlaw/lwcglink.html ←.
A Few Friendly Questions For Supreme Court Justice Neil Gorsuch
On his tour for his new book, A Republic, If You Can Keep It, Justice Gorsuch intuitively defined and strongly and coherently defended originalism (which I extrapolate to original genesis and original intent) to counter living constitutionism which asserts (my analysis, not Justice Gorsuch’s) that the words on the page may be ignored when necessary to promote a greater good to maintain a peaceful social order. Two greater goods which Justice Gorsuch wrote about in his book and talks about in the public discussions are Dred Scott (a Supreme Court pro-slavery decision which influenced the four year civil war between the states) and Korematsu (internment camps for Japanese American citizens during WW2).
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Justice Gorsuch doesn’t use the phrase living originalism in his book or in the public discussions, but I use the phrase here because living originalism is parallel to living constitutionism in the sense that these parallel ‘living’ phrases will never meet because they cannot meet for the same natural law (law of nature) reason that in an infinite universe (‘infinite’ = no beginning and no end) in which ‘infinite’ means always ‘infinite’, parallel lines cannot ever meet. The natural law (law of nature) is like that. It is natural law which determines that two things, in this case, two positive law (law of people) ideas which are ‘parallel’ can’t meet. It is the law of nature which determines that two law of people ideas can’t ever meet. The parallel law of people ‘livings’ of living originalism and living constitutionism cannot ever meet because only one is the original genesis reason for John Jay underlining the word ‘born’ in “natural born Citizen” in his July 25, 1787 note to George Washington. It was that one original genesis implicit reason which was accepted without debate by the convention delegates and inserted into Article II concerning eligibility to be president from generation to generation after the last “... or a Citizen of ...” died sometime in the middle 1800s. It is for that parallel ‘living’ original genesis reason that only singular U. S. citizenship for eligibility to be president will never co-exist with dual citizenship for eligibility to be president. That is obvious now, right?
The introductory comment on National Constitution Center’s YouTube page September 17, 2019
→ https://www.youtube.com/watch?v=wR9Q-Xm7JJE:
“Justice Neil M. Gorsuch joins National Constitution Center President and CEO Jeffrey Rosen for a special Constitution Day conversation exploring his new book, A Republic, If You Can Keep It”.
At 00:01:31 Jeff Rosen starts his introduction of Justice Gorsuch with an announcement: “And, one of the great thrills and honors of today has been to celebrate our first Constitution Day with the new Honorary Chair of the Constitution Center, Justice Neil Gorsuch”.
So, for those who can communicate with Honorary Chair Justice Gorsuch, who identifies himself as a “words on the page” “originalist” and “textualist” as was his fishing partner Justice Antonin Scalia, here are three questions for Justice Gorsuch related to John Jay, the original birther ‘living originalist’, and Jay’s eligibility to be president original genesis implicit reason for underlining the word ‘born’ in the term of art phrase “natural born Citizen”. John Jay, first Supreme Court Chief Justice and New York ratifier of the U. S. Constitution who knew what ‘devolve’ and ‘born’ in “natural born Citizen” meant because he wrote the words, had an original genesis reason for underlining the word ‘born’ in his July 25, 1787 note to his good friend George Washington who presided over the convention. Jay, Washington and all of the convention delegates knew that ‘born’ in “natural born Citizen” meant only singular U. S. citizen, not dual citizenship.
The original note is at this address – zoom in to see the word ‘born’ underlined:
→ https://dlc.library.columbia.edu/jay?utf8=%E2%9C%93&search_field=all_text_teim&q=july+25%2C+1787+note+to+washington
“Permit me to hint, whether it would not be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government, and to declare expressly that the Command in chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen—[…]”.
My Question #1
Does Justice Gorsuch believe that eligibility to be president requires that a “natural born Citizen” must have, for societal and presidential continuity, at least these seven ‘only’ predicates?
1) ONLY singular U. S. citizenship
2) ONLY by birth alone
3) ONLY on U. S. soil
* including foreign soil under U. S. jurisdiction
4) ONLY to two U. S. citizens
* exclusive heterosexual marriage was the only perpetual living originalist intent in 1787
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* inclusive homosexual ‘marriage’ was not living originalist intent in 1787
* inclusive homosexual ‘marriage’ is living constitutionism intent only in the 2000s
* inclusive transgender ‘marriage’ (whatever that means) will be the next living constitutionism intent
* inclusive living constitutionism intent will require amendments to explain how singular and dual citizenship will ‘devolve’ (John Jay’s word) on a child
5) ONLY married
6) ONLY to each other
* originalist intent in 1787 = only one wife, not multiple wives at the same time
7) ONLY before a child is born
My Question #2
Does Justice Gorsuch believe eligibility to be president also allows dual citizenship which is also possible by birth alone but when only one parent is a U. S. citizen?
Question #2 applies to Senator/President Obama and Senator Cruz. Although the mothers of both President C. A. Arthur (b. 1829) and Senator Cruz (b. 1970) were living in Canada to foreign born husbands who had not naturalized as U. S. citizens before their children were born, President Arthur is in a different category from Senator Cruz because of the 1922 Cable Act. Before 1922, a foreign born female derived her U. S. citizenship by marriage (naturalized by marriage so to speak) to a male who was already a U. S. citizen by either birth or naturalization. That was the common law from the 1700s until the 1922 Cable Act when women could choose to retain their foreign citizenship or naturalize by oath. A U. S. born female who was a U. S. citizen lost U. S. citizenship and acquired the male’s foreign citizenship (naturalized by marriage). The result was that the singular U. S. citizenship of the U. S. citizen male with a new wife, after their marriage, passed on their combined singular U. S. citizenship to their child who was born after they were legally married. For that ‘legal’ reason a child was recognized as a “natural born Citizen” with only singular U. S. citizenship and so eligible to be president. As mentioned earlier, the 1922 Cable Act impacted how this played out. Conversely, if the male was an alien, the foreign citizenship of the male, which a female acquired by marriage, would also pass their combined singular foreign citizenship to their child who was born after they were legally married. For that ‘legal’ reason a child was not recognized as a “natural born Citizen” with eligibility to be president because the child had only singular foreign citizenship even if born on U. S. soil. As mentioned earlier, the 1922 Cable Act impacted how this played out for Article II singular U. S. citizenship for a child. From 1787 until 1922 if the alien male did not naturalize before marriage on U. S. soil to a U. S. born female or a foreign born female and before the birth of a child, the child would have singular foreign citizenship and so the child would not be eligible to be president.
My Question #3
Does Justice Gorsuch believe eligibility to be president has been allowed since 1787 to persons with dual citizenship? Dual citizenship is also possible to be acquired by birth alone to one U. S. citizen who is not married and also to married parents who both are not U. S. citizens?
Question #3 applies to Gov. Nikki Haley, Gov. Bobby Jindal and Sen. Marco Rubio who said, when they were candidates for president against New York businessman Donald Trump, and as living constitutionism proponents also say about these three 1868 Fourteenth Amendment ‘citizens’ (they were born on U. S. soil to two foreign born parents who did not naturalize as U. S. citizens before their children were born), they are “natural born citizens” and so are eligible to be president. Why? They base their assertion about the 1868 language on the 1898 Supreme Court fiat (‘because we said so’) ‘opinion’ about the 1868 Fourteenth Amendment ‘citizen’ language.
Is “Born” Exclusive or Inclusive?
Is ‘born’ in “natural born Citizen” exclusive or inclusive? Is the “natural born Citizen” language and eligibility to be president of the United States exclusive, applying to only singular U. S. citizenship or inclusive, applying to either only singular or dual citizenship? Is the word ‘born’ a reference to exclusive living originalism or inclusive living constitutionism. It’s one or the other; not neither and not both. For an originalist like Justice Gorsuch it’s ‘one or the other’ because not both and not neither are not relevant. Does the “natural born Citizen” language imply only singular or also dual?
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#1) Ronald Reagan Presidential Foundation and Institute
→ https://www.youtube.com/watch?v=JL-p0RJqxcg
Posted September 11, 2019
Associate Justice Neil Gorsuch discusses his book, A Republic, If You Can Keep It, at the Reagan Library. Fred Ryan, Chairman, Board of Trustees of the Ronald Reagan Presidential Foundation and Institute, interviews Justice Gorsuch.
00:19:00 Separation of Powers
Fred Ryan 00:24:57 Originalism and Textualism
Early in the book you introduced two important concepts, one, originalism and the application of the Constitution, and two, textualism in the interpretation of statutes. Can you give us a summary explanation of what these concepts mean and why they’re important?
Neil Gorsuch
Now we’re really getting wonky. But, yes, this is very important to me. The term originalism had not been uttered by any of my professors at law school until Justice Scalia showed up one day to give a lecture and he introduced it to me. And it’s not something I fully embraced or understood, even, until years later and I became a judge. And originalism, all it is, it’s really a simple idea, a simple idea, that judges should abide the words on the page as they were originally understood at the time they were adopted. That’s it. The truth is that judges, always, when it comes to written laws, whether you’re talking about statutes or contracts, know that their role was to apply those words as they originally were meant and understood at the time they were written. And, our founders decided on a written constitution. That’s what they put down, they put it down on paper. They set down our rights, our obligations, on paper. They didn’t choose to leave it to evolve. If you want to change it they prescribed a process, it’s called the amendment process. And that’s directed by we the people, not anyone else. So, originalism honors, I think, the writtenness of our constitution. They could have done it otherwise. They knew the English practice of an unwritten constitution. They rejected that. And, I came to see in real cases in real lives what happens when judges ignore, or override, the original meaning of the words on the page, instead of pursue something they like to call, sometimes, a living constitution. As a judge I came to see that when we go that route your rights are often taken away, the ones that are there, on the page, to be found. Let me give you a couple of examples.
The Sixth Amendment, you can read it, it says you have a right to a jury trial in criminal cases, and a right to confront your accusers. It doesn’t take a scientist to figure out what those words mean in most cases. Yet, the Supreme Court of the United States in living constitution decisions over the years has said that your right to a jury trial sometimes gives way and a judge instead can try your case; your rights diminished, and, sometimes, you don’t have a right to confront your accusers. Sometimes, a piece of paper written by a police officer can be introduce as a key evidence against you, enough to send a person away for twenty years or more. OK. Those are some of the rights that get taken away.
Korematsu, one of the most infamous decisions of the United States Supreme Court, took a lot of rights away from a whole class of citizens. It said that Japanese Americans, citizens, could be rounded up and detained during the duration of hostilities in the second world war without any due process; without any recognition of equal protection obligation in our constitution. Judges thought they were doing something important; vital; keep the peace; help the war effort; living constitution; evolve it a little bit; ignore the words on the page.
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OK. Not only did they take things away, then they put things in there that aren’t there, and the most infamous example is Dred Scott. That was the first case where the United States Supreme Court really radically departed from the original meaning of the Constitution. What did they do there? They said that white persons had the right to own black persons as slaves on the territories of the United States, and that that was guaranteed by the Fifth Amendments' due process clause. Well, stare at that clause as long as you want, it ain’t there; they put it there. And, they thought they were doing something good. I mean, they were, they thought, well intentioned. They thought they were averting a civil war. But, here’s a little secret, judges make pretty rotten politicians. When they start exercising will rather than legal judgment they got it wrong, of course. They wound up contributing to a civil war.
So, for me, originalism is all about recognizing that nine old people in Washington, and, I can say that now, I just had a birthday, were never supposed to govern a continental nation of 330 Americans. That’s not what the framers had in mind. It’s a republic and it’s for you to keep.
Fred Ryan 00:30:10 Originalism and Brown v. Board of Education
Some critics of originalism say, though, that you cannot accommodate important Supreme Court decisions like Brown v. Board of Education which desegregated American schools. Can you explain how decisions that are viewed as progressive like Brown v. Board could actually reflect an originalist approach?
Neil Gorsuch
My friend Michael McConnell has written the definitive article on Brown versus Board of Education and why it fits with the original meaning of the Constitution, and I’m a complete subscriber to that.
[My comment about “Brown v. Board of Education”]
Here is the address to the “definitive article … original meaning” by Justice Gorsuch’s friend, Michael W. McConnel – ‘The Originalist Case for Brown v. Board of Education’ University of Chicago Law School Chicago Unbound [1995 – pdf – 9 pages]
→ https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=12612&context=journal_articles
Originalism and the Desegregation Decisions – Michael W. McConnell
University of Chicago Law School Chicago Unbound
Virginia Law Review Volume 81 May 1995 Number 4 [1995 – pdf – 195 pages]
→ https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=12624&context=journal_articles
Originalism and Brown V. Board of Education – Steven G. Calabresi & Michael W. Perl
2014 Mich. St. L. Rev. 429 [2014 – pdf – 146 pages] and [2014 – pdf – 124 pages]
→ https://digitalcommons.law.msu.edu/cgi/viewcontent.cgi?article=1086&context=lr
→ https://law.yale.edu/sites/default/files/documents/pdf/Intellectual_Life/LTW-Calabresi.pdf
The Problematics of the Brown-is-Originalist Project – Ronald Turner
Journal of Law and Policy [2015 – pdf – 58 pages] → https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1036&context=jlp [End of comment]
Neil Gorsuch
To me, you look at the Fourteenth Amendment, it says equal protection of the laws, right. And, I have over my fireplace in my office John Marshall Harlan, the first Justice Harlan, there were two. And, he was the sole dissenter in Plessy versus Ferguson when he recognized that segregation is not consistent with the original meaning of the Constitution. He looks pretty dour. He looks pretty tired and haggard. And I don’t doubt he’s pretty unpopular back home in Kentucky where he was from. But he knew that segregation is not equal protection of the laws. The meaning of those words on the page, equal protection of laws, may be one of the most radical and important guarantees in our law in all human history.
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And, as to the notion that originalism yields conservative results or takes us back to horse and buggy days, I say rubbish. Alright, and, you know, look at the decisions from this last term that I wrote if you want to grade an originalist on conservatism. Is it conservative, in a small ‘c’ sense of conserving the original meaning of the Constitution. You betcha. But, does that lead to politically conservative or liberal results? It doesn’t have any political valence at all.
So, for example, your right to have your cell phone data kept private. An originalist, in the Carpenter decision, might very well be more protective of their rights there than a living constitutionalist. Double jeopardy; Ruth Bader Ginsburg and I were the only two dissenters in an important double jeopardy case this year [applause] on originalist grounds. Alright. Your right to confront accusers and to have that jury trial; I wrote a 5-4 decision this year upholding that right. Is that liberal, is that conservative? I don’t know, but I know it’s in the Sixth Amendment. So, I think, people have been selling that line have a bridge they want to sell you too.
Fred Ryan 00:33:00 First Amendment
In the book you discuss the First Amendment as well as the spirit of original intent. Why did the founders believe that press freedom was essential to the success of our republic?
Neil Gorsuch
Well, I think they thought all of those freedoms were essential, and I wouldn’t say it’s my role to pick or choose among them. You may have your favorite right these days, Fred.
Fred Ryan
The First is pretty high on the list.
Neil Gorsuch
I bet it is, right now. But, my job is to enforce all your rights and not to pick favorites.
[My comment about relating “your rights” to eligibility to be president]
The words “your rights” in Justice Gorsuch’s quote above refers to the person who is being denied, not the denier of rights. So, next is a thought experiment to clarify for myself Justice Gorsuch’s point which got me to wondering how Justice Gorsuch would clarify things if he was conducting a tabletalk about ‘your rights’. In the questions which follow how would Justice Gorsuch opine in relation to Article II and eligibility to be president? Who is denied ‘rights’ and who is the denier of ‘rights’? Who is the ‘denied’, who is the ‘denier’?
For eligibility to be president, is there a ‘right’ that is superior and a ‘right’ that is inferior (bogus)?
For eligibility to be president, which ‘right’ is superior – the right of the denied or the denier?
For eligibility to be president, which ‘right’ is bogus – the right of the denied or the denier?
For eligibility to be president, is the ‘right’ of the citizens to have only a singular U. S. citizenship ‘citizen’ to be recognized as the “natural born Citizen” eligible to be president the right of the denied or the right of the denier?
For eligibility to be president, is the ‘right’ of the citizens to have a dual citizenship ‘citizen’ to be recognized as the “natural born Citizen” eligible to be president the right of the denied or the right of the denier?
For eligibility to be president, is living originalism the ‘right’ of the denied or the right of the denier?
For eligibility to be president, is living constitutionism the ‘right’ of the denied or the right of the denier?
For eligibility to be president, which ‘right’ is living originalism, only singular citizenship or dual citizenship?
For eligibility to be president, which ‘right’ is living constitutionism, only singular citizenship or dual citizenship?
For eligibility to be president, which ‘right’ is not living originalism, the right of the denied or the denier?
For eligibility to be president, which ‘right’ is not living constitutionism, the right of the denied or the denier?
For eligibility to be president, who is the ‘denied’, the living originalist or the living constitutionist?
For eligibility to be president, who is the ‘denier’, the living originalist or the living constitutionist?
For eligibility to be president, who is the denied and who is the denier?
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Well, it depends on perspective.
Right. For eligibility to be president, begin with perspective, definitely. One perspective is the old and only original, and, being true, it is superior. The other perspective is not the only original because it is the new original, and, because it is ‘new’ it is false (bogus) and therefore inferior.
It is either John Jay’s original birther living originalism perspective of singular genesis and implicit intent for eligibility to be president which is either true or false (bogus), or it is Akhil Reed Amar’s neobirther living constitutionism perspective of dual genesis and implicit intent for eligibility to be president which is either true or false (bogus).
It’s not neither which is true and it’s not both which are true. It’s one or the other. Right?
Living originalism and singular U. S. citizenship are denied by living constitutionism.
Living constitutionism and dual citizenship are denied by living originalism.
The deniers are the living originalism citizens who want only a singular U. S. citizenship ‘citizen’ to be recognized as a “natural born Citizen” and eligible to be president.
The deniers are the living constitutionism citizens who want a dual citizenship ‘citizen’ to be recognized as a “natural born Citizen” and eligible to be president.
Living originalism and singular U. S. citizenship ‘deny’ living constitutionism.
Living constitutionism and dual citizenship ‘deny’ living originalism.
The denied are the living originalism citizens who want only a singular U. S. citizenship ‘citizen’ to be recognized as a “natural born Citizen” and eligible to be president.
The denied are the living constitutionism citizens who want a dual citizenship ‘citizen’ to be recognized as a “natural born Citizen” and eligible to be president.
Living originalism claims that singular U. S. citizenship, because it is exclusive (e.g., age 35 and 14 years residence is exclusive) it is superior to dual citizenship and has superior status for eligibility to be president.
Living constitutionism claims that dual citizenship, because it is inclusive, it is superior to singular citizenship and so it has superior status for eligibility to be president.
Which ‘right’ is superior – the denied or the denier?
Which ‘right’ is bogus – the denied or the denier?
Regarding eligibility to be president, which ‘right’ is the living superior ‘right’?
Regarding eligibility to be president, which ‘right’ is the living bogus ‘right’?
Why is the exclusive living originalism ‘right’ superior to an inclusive living constitutionism ‘right’?
Why is the inclusive living constitutionism ‘right’ superior to an exclusive living originalism ‘right’?
One ‘right’ is superior and one ‘right’ is inferior (bogus). That is obvious, right?
Either exclusive is superior or inclusive is superior. Right?
Either exclusive is inferior (bogus) or inclusive is inferior (bogus). Right?
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Here are seven questions about the delegates who were at the 1787 constitutional convention who adopted the “natural born Citizen” words in Article II for eligibility to be president.
1) Were the delegates John Jay inspired living originalists as the term is used on this tabletalk conversation, or were the delegates neobirther inspired living constitutionists as Justice Gorsuch has identified the term constitutionism in his book?
2) Were the delegates living originalists by the Article II implicit original genesis intent for only ‘exclusive’ eligibility to be president, and promoting only singular U. S. citizenship for eligibility?
3) Were the delegates living constitutionists by the Article II implicit original genesis intent for also inclusive eligibility, and promoting also dual citizenship for eligibility to be president?
4) Were the delegates living constitutionists by the Article V amendment process for only exclusive eligibility and promoting singular U. S. citizenship for eligibility to be president? An amendment is constitutional positive law (law of people) and true ‘living constitutionism’.
5) Were the delegates living constitutionists by the Article V amendment process for dual and inclusive eligibility and promoting dual citizenship for eligibility to be president?
6) Were the delegates living constitutionists by the Article I legislative ‘statute’ process, or by the Article III judicial fiat (‘because we said so’) ‘opinion’ process for ‘inclusive’ eligibility and promoting dual citizenship for eligibility to be president?
7) Were the delegates living constitutionists in the spirit of the 2000s neobirther serendipity ‘opinion’ process (‘serendipity’ = implicit ‘wow, look at what we found’ in the “unwritten constitution when we needed to find it”) as promoted by Prof. Akail Reed Amar for inclusive eligibility and promoting dual citizenship for eligibility to be president? [End of comments]
00:33:28 Rule of Law
00:41:56 Access to Justice
00:42:37 Citizenship
00:45:35 Civility
00:49:13 Confirmation Process
00:51:07 Mentors
00:53:17 Justice Scalia
Justice Scalia. A lion of a man in public life, and docile in private. So much to admire there. Fierce originalist. fearless originalist. unapologetic originalist. I’m happy to follow in that mold.
01:01:06 Family & Career
01:03:18 Obituary & Epitaph
01:05:20 Legacy
Neil Gorsuch 00:53:17 Justice Scalia
Justice Scalia. A lion of a man in public life, and docile in private. So much to admire there. Fierce originalist. fearless originalist. unapologetic originalist. I’m happy to follow in that mold. [snip]
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#2) Richard Nixon Presidential Library and Museum
→ https://www.youtube.com/watch?v=WsPBJtrlSOc
Posted September 13, 2019
The introduction is by Hugh Hewitt. Justice Gorsuch was interviewed by Matt Parlow, Dean of the Chapman University Dale E. Fowler School of Law. The discussion was filmed at the Richard Nixon Presidential Library and Museum on September 11, 2019.
00:05:30 Life since Announcement
Matt Parlow 00:14:12
You wrote a terrific book, I really enjoyed it, A Republic, If You Can Keep It. It’s a really interesting title; it comes from a famous quote. Do you mind providing the context for the quote and why you picked it as the title?
Neil Gorsuch
Sure. As you all know, the story is that Ben Franklin is coming out of the constitutional convention and someone ask him what kind of government are you proposing, and he says “a republic if you can keep it”. And, republics have kind of a checkered record in our history books, right. They tend to not last very long. Our written constitution is still, already, the oldest written republican constitution in history. Think about that; in all of human history.
So, a republic requires an educated citizenry. Thomas Jefferson said if you expect ignorant people will remain free in a republic you wish for something that has never happened and never will. It requires a people who are able to talk and listen; to tolerate as well as expect tolerance; civics; civility, alright. And, during the confirmation process, and who understand their government and care about their government and love their government and want to help run their government. That’s what a republic requires. And the word ‘republic’, Latin, means “a thing of the people”, “of the people”.
[My comment about a republic]
Merriam-Webster’s Dictionary of Law, [definition #2] a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law; also: a political unit (as a nation) having such a form of government.
American Heritage Dictionary, [definition #5] republic n. A group of people working as equals in the same sphere or field. [< Lat. res publica : res, thing + publica, fem. of publicus, of the people….] [End of comment]
Neil Gorsuch
During the confirmation process, which was a very interesting process [mild laughter], I became a little concerned that some of these things were lost or in danger of being lost. How many people wanted me to promise to rule this way in a case? What judge would rule, promise how they’d rule in a case? They talk about my record, I ruled for a particular party. They said I must have liked that kind of party. Or, if I ruled against a person, I must dislike that kind of party. What kind of judge rules for the people they like and against those they dislike? And, so, I wanted to talk about that [snip].
00:16:57 Civics & Civility
00:26:50 Separation of Powers
Neil Gorsuch 00:29:05
I didn’t appreciate Madison’s brilliance until I became a judge, and I started to see what happens when the separation of powers goes ignored in our own time. If you don’t believe that it happens, let me tell you a few stories. OK. What happens when judges start to make stuff up and act as legislators?
There’s a case called Dred Scott. It’s the first time the Supreme Court of the United States departed from the original meaning of the Constitution and started to make stuff up. And, they held that a white person has the right to own a black person in the territories of the United States guaranteed by the Fifth Amendment’s due process clause. Due process guarantees that right. Now, they thought, like a good legislator, that doing this, making it up a little bit would help a problem of the day. They were well intentioned, I think, in their own minds. They were trying to avert the civil war. But, judges make for rotten politicians and instead of averting the civil war they contributed to it. So, that’s what happens when judges start to act like legislators.
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What happens when judges give away their legislative power to the executive branch? Another problem happens. Madison knew that the most dangerous part of government is the capacity to restrict liberty. The power to make new laws restricting your natural freedoms. So, he wanted it to be really hard. Everyone complains law making’s hard. Madison, if he were here today, would have jumped up and down and said, great. That was the whole point. Two houses of Congress responsive to different electorates at different times. Modern political science has established, that system, forget about the rules of the Senate, that system itself creates a supermajority requirement for any new law. The result is, minorities are at the fulcrum of legislative power. They hold sway of which way it’s going to go, up or down. That’s what was going to protect minority rights against incursions by the tyranny of the majority, Madison thought. That was going to be a public process and minorities are going to have the key to the legislative process.
OK, what happens when you take that very public process, the people and their representatives are involved, and hand it over to the executive branch? One of two things happens. One, the president can do whatever the heck he wants very quickly. Doesn’t have to consult 435 members of Congress. You’re going to get a lot more law; it’s going to come a lot more quickly; and it’s going to be a lot more tyranny of the majority problems. You’ve elected yourself a king for four years. Or, maybe worse still, what if the president can’t even control the bureaucracy that’s making the rules? You have a bureaucrat in Washington, unresponsive to anybody, making the laws.
If you think I’m making it up, let me give you a case to show you what happens. I had it in the tenth circuit, It’s in the book. All this is in the book. Caring Hearts versus Burwell. Small nursing facility providing home health care to seniors, and they were accused of Medicare fraud and fined $800,000 by the bureaucracy for violating the rules. Sounds very serious; put you out of business serious. Years of litigation; churn, churn, churn. Anyone being involved in litigation; how long it takes these days? Guess what. It turns out they had abided by every single rule that the bureaucracy had in place at the time they had provided their services. The bureaucracy was so confused that it accused them of violating rules it that didn’t create until years later. Even the government can’t keep up. And, Madison foresaw this, he said, too little written law, you don’t know what is a danger; you don’t know what your rights and obligations are. Too much written law that it becomes like a paper blizzard. I asked my law clerks, how many federal criminal laws are there today? And the answer is, well, in the statute books there are about 4,000. That doesn’t count the state laws. I said, fine, how many of these rules that delegated legislative authority to the agencies? How many have they created, the agencies created? And, the answer is, we don’t know. We used to know about 20 years ago, there was about 300,000, but it keeps churning, and no one, not even the professors can keep up..
Alright, that’s what happens when you give away legislative authority to the executive. What about the other angle, and then I’ll shut up about the separation of powers. What happens when you give away the judicial power to another branch? We have rules now where if you’re a veteran and you apply for benefits, or you’re an immigrant and you seek entry into this country under the laws, and a judge thinks you have a winning argument under the law, under the statute as written, he cannot rule for you if a bureaucrat has interpreted the law against you. Your right to an independent judge and a jury goes away. I have to defer, so the bureaucrats tell me, to agencies and their interpretation of the law.
Chief Justice Marshall, the great Chief Justice at the beginning of our country, said it is emphatically the province of the judiciary to say what the law is. What happens when bureaucrats instead of judges get to decide your rights? They’re responsive to politics. They’re responsive to lobbying by vested and large interests. Now, the big guys, they can take care of themselves in that process. They can capture the agency. They can buy their lobbyists. They have all those perfumed lawyers. What about the rest of us? What about that veteran? What about that immigrant?
That’s why the separation of powers, I came to see, matters. It’s what protects your liberty. The problem is, it only is going to survive if you want it to. It’s like all our rights, and I think Ronald Reagan said, freedom’s only one generation away from being extinguished, something like that. This stuff isn’t going to be protected forever unless you want it to be and you make it happen. The first three words of the Constitution are “we the people”. It’s up to you to keep it.
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Matt Parlow 00:36:15 Originalism
One of the keys you point to in the book for strengthening separation of powers is sort of a real fidelity to originalism. Why do you think that is so important?
Neil Gorsuch
So, originalism sounds pretty wonky, doesn’t it? I try to explain in the book why, not only isn’t it wonky but you need to know about it, and it matters to your rights; your children’s rights.
So, what is originalism? It’s really pretty simple. It’s the view that the document of the Constitution, like any other law should be interpreted according to its original public meaning. That the words on the page should mean the same today as they did 200 years ago, and they should mean the same always. The meaning of Shakespeare’s sonnets doesn’t change. I don’t get to make up new versions of it, and neither should I be able to make up, or evolve, the Constitution. That’s a pretty simple idea. In fact, the Supreme Court of the United States has said, probably a hundred times if its said it once, that that’s how we interpret statutes and contracts, according to their original public meaning. Why would the constitution be any different?
Our founders took the trouble of writing our constitution down. They rejected the English model of an unwritten constitution. So, I think originalism respects the writtenness of the Constitution, and the limited role of a judge in a republic. The alternative is what they call this living constitution. Now, that sounds a lot better than originalism. We’ve got to come up with a better label. Living constitution; what, I like dead constitutions? No. I love our Constitution.
Alright. So, here’s what happens when you go down the living constitution road. I didn’t know any of this when I; these guys [he points to former clerks sitting in the audience] are so far ahead of me, that’s why I’ve got optimism. When I was in law school, they didn’t even use the word originalism in law school classes. They didn’t teach it. I first heard it from Justice Scalia when he came to speak, when he was a young justice about my age now [laughter about ‘age’ humor] and it was a breath of fresh air, and it really got me to thinking. But, what really persuaded me, it was, again, being a lawyer and a judge and seeing what happens when you go down the other way, just like when you start bleeding the separation of powers.
Here’s what happens when you go down the living constitution road. The first thing that happens, you start losing your rights. Let me give you some examples. Take the Sixth Amendment. It says you have a right to a jury trial in a criminal case. It says you have a right to confront the witnesses against you. Now, it does not take the worlds’ most sophisticated originalist to understand those words. Living constitutionalists, though, on the Supreme Court of the United States, held that sometimes you don’t have a right to a judge in a criminal case that may expose you to many years more in prison. And, your right to confrontation, living constitutionalists have held, hmm, sometimes. And sometimes, a piece of paper written by a police officer, you can’t cross examine. It can be enough to send you to prison for decades. Because, there are more important things than, like, confrontation. There are more important things than your right to a trial by jury. Maybe they think so but the founders didn’t. It’s not what we agreed to in the Constitution.
Alright. Then they start putting stuff in there that isn’t in there. That’s the other part. Not only did they take stuff away, then they start adding stuff, like Dred Scott, again. Where the heck did the right to own slaves in the territory come from? It ain’t in the due process clause in the Fifth Amendment, I’m pretty sure of that, but they put it there. Korematsu. Where’s the right to round up Japanese Americans citizens without any semblence of due process? Let’s just stick that in there too.
Originalism honors the constitution that was adopted. Is it a perfect constitution? I’m not here to tell you everything’s perfect. It didn’t allow women the right to vote, the original constitution, and slavery was permissible in the southern states. But, we the people changed that through the amendment process, and that is the appropriate way to change the Constitution. Not nine older people sitting in Washington. That’s not what we the people agreed to.
And then I hear sometimes it leads to conservative results, or something. Rubbish. Have the results I’ve talked about sounded conservative to you, politically? Is the right to a trial by jury conservative? Is refusing to recognize a right to own slaves in the territories conservative? This has nothing to do with politics. This has everything to do with preserving, conserving I’ll admit, our Constitution. That’s what originalism is about.
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Matt Parlow 00:42:04 Textualism
You say in the book that two tools of legal interpretation that are true to the role of a judge in our Constitution are both originalism and textualism. Talk about the importance of textualism, particularly in a statutory state we live in.
Neil Gorsuch
Textualism is just the same thing as for originalism; don’t make stuff up. I have two rules for my law clerks. They come in at the beginning of the year, they’re all cheerful and happy and I say, listen, we’re going to have a great year together, it’s going to be fun, but I just ask you to abide two simple rules when it comes to statutes and the rest of it. Rule number one, don’t make stuff up. Just follow the words on the page. Right. And number two, when you’re tempted because the rule’s stupid, the law is dumb, or someone is pressuring you, or somebody wrote a nasty editorial in some newspaper, or they’re saying they won’t invite you to their cocktail parties if you don’t make it up, do me a favor, refer back to rule number one. That’s all textualism is.
You know, sometimes a judge knows about three things. Justice Scalia used to say something like this, so true. Number one, this statute is really dumb. The American peoples’ representatives have enacted what I think to be, personally, I think to be, a stupid law. Number two, it’s a Constitutional law. And, number three, when I do my job as a judge and enforce this stupid but Constitutional law, everybody whose not a lawyer is going to think I’m pretty stupid too. OK. That’s what textualism’s about. You want to change the law? Don’t ask nine people to do it ‘cause they’re going to do it however they want. Go across the street to the Capitol building to your elected representatives. That’s where you’re supposed to change the law. It’s not my job to do their job. That’s what textualism’s about.
Matt Parlow 00:44:20 Precedent
In chapter four you pose a question about when judges should follow or overrule decisions which they think were mistaken. Your short answer is, it’s not always and it’s not never. Can you unpack that a little bit?
Neil Gorsuch
Yeah. People today say, you voted to overrule precedent, you’re a terrible person. And then, in the next breath they’ll say, and I want you to overrule this one and that one and [hand waves as voice fades – laughter]. OK. Everybody’s got their favorite cases and the cases they hate. Everybody. Let’s be honest, everybody.
Alright. So, if you’re telling me precedent should always be respected I’d say, really? You want me to keep Dred Scott on the books, then. You’d like me to keep Korematsu on the books. One of my favorite things that happened the last two and a half years was we got to overrule Korematsu. I am not ashamed of overruling precedent like that. And so, the answer has to be not never and not always.
And the question then becomes when, and that’s hard. And I can’t give you a mathematical formula for that. That’s judgment. Alright. That’s legal judgment. It’s not a bad place to start, though, by asking, how well reasoned is that opinion? How faithful is it to the original understanding of the Constitution? There are other questions you have to ask, too, but that’s a pretty good place to start.
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Matt Parlow 00:45:50 Judges & Legislators
You have an interesting exchange with Senator Sasse in the book that you reference where you really try to draw a distinction between the judge and a legislator ... about qualities in a judge ... you talk about judicial virtues and avoiding judicial vices. Can you talk about some of those?
Neil Gorsuch
So, the bit with Senator Sasse was he was asking me, how do you want to be remembered? And I said something along these lines, I want to be forgotten. [laughter] I think I really met it right about then. I do mean it. We remember presidents, and we remember our elected leaders for good reasons. They make the laws; they do war, they do peace. What’s a judge supposed to do? A good judge. A judge is supposed to take this wonderful inheritance of our Constitution and our rule of law, which is so strong, and make sure that it’s handed down to the next generation. That’s it? Not to exercise personal will but legal judgment? And so, a good judge probably should be forgotten pretty quickly is what I told him. I don’t think he was expecting that answer. But I had in mind my old boss Byron White ... he said ... and I’ll be forgotten soon enough, as well, and that’s exactly how it should be. [snip]
00:50:04 Access to Justice
00:58:03 Obituary and Epitaph
01:01:10 Justice Kennedy & Justice Ginsburg
01:05:00 Family, Friends, Power of Prayer
#3) U. S. National Archives
→ https://www.youtube.com/watch?v=_Uf6PEZU3QE
Posted on September 16, 2019
The times in the transcript are from C-SPAN.org “info”, not C-SPAN.org “video”.
C-SPAN.org info: → https://www.c-span.org/person/?neilgorsuch
C-SPAN.org video: → https://www.c-span.org/video/?463951-1/justice-gorsuch-discusses-a-republic-it
[This intro is by the C-SPAN narrator]
Supreme Court Justice Neil Gorsuch talks about the judicial system and his new book, A Republic, If You Can Keep It. The book is a series of essays, articles and portions of his opinions regarding the original meaning of the Constitution. Two former Supreme Court law clerks co-authored the book. The National Archive hosted this event.
David Ferriero 00:04:20
Good evening, and, welcome to the William G. Magowan Theater at the National Archives. I’m David Ferriero, the Archivist of the United States, and I’m pleased you could join us for tonight’s program whether you’re here in the theater or joining us through Facebook or YouTube, and a special welcome to our C-SPAN audience this evening.
Tomorrow is Constitution Day, September 17th, commemorating that day in 1787 when the delegates of the Constitutional Convention signed the document establishing a new government for the United States of America.
At the National Archives we have celebrated Constitution Day since 1956, four years after installing the original parchment document in its place of honor in the Rotunda. Over the decades we have celebrated the Constitution in many ways. Tomorrow we host one of my favorite events, a naturalization ceremony for new citizens of the United States. It’s always a moving experience to witness people from all parts of the world stand in front of the parchment signed by our founders 232 years ago and swear to support and defend the Constitution. We also invite notable guest speakers to help us reflect on and understand the Constitution and its central place in our nation’s history and in the present day.
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Today we are especially honored to have with us this evening the sitting Justice of the Supreme Court of the United States. Associate Justice Neil Gorsuch has recently brought together his reflections on the Constitution and its separation of powers into one volume, A Republic If You Can Keep It. We are pleased to welcome him here to the home of the original United States Constitution.
Neil Gorsuch was born in Denver, Colorado, received a BA from Columbia University, a JD From Harvard Law School, and a Doctor of Philosophy from Oxford University. He served as a clerk to Judge David Sentelle of the United States Court of Appeals for the District of Columbia, and as a law clerk to Justice Byron White and Justice Anthony M. Kennedy of the Supreme Court of the United States. From 1995 to 2005, he was in private practice, and from the 2005 to 2006 he was Principal Deputy Attorney General at the U. S. Department of justice. He was appointed to the United States Court of Appeals to the Tenth Circuit in 2006. He served on the Standing Committee on Rules and Practice and Procedure of the U. S. Judicial Conference and as Chairman of the Advisory Committee on Rules of Appellate Procedure. He taught at the University of Colorado Law School, then President Donald J. Trump nominated him as the Associate Justice of the Supreme Court, and he took his seat on April 10th, 2017.
Ladies and gentlemen, please welcome the Honorable Neil Gorsuch, Associate Justice of the Supreme Court of the United States.
[David Ferriero] 00:07:35
It’s wonderful to have you back. You were here just after you were seated in May of 2017 to swear in the 150th National Counter Intelligence and Security Center staff in the Rotunda. So, it’s nice to have you back with us.
Neil Gorsuch
It’s always nice to be here. It’s a wonderful place and I encourage all young people, especially, to come and visit it. It’s just across the mall from the Air and Space Museum. It’s not that far, and if you are really lucky, I know kids get to spend a night camping out with the Constitution. How cool is that? I’ve had a lot of friends with kids who have done that and it’s touched them. So, thank you for doing that.
00:08:21 [How Life Changed]
00:12:58 Data Request
David Ferriero 00:17:35
So, tell us about the inspiration for this book.
Neil Gorsuch
Well, it came during the confirmation process. My predecessor Antonin Scalia smoked a pipe at his confirmation hearing. I don’t think we’re likely to see that again. My old boss, Byron White, his confirmation hearing lasted 15 minutes. So did mine for the Tenth Circuit. [laughter] Things were a little different the next time around. During the confirmation process, I was truly surprised, David, at how many people thought that a judge is really just a politician who wears a robe and should promise to do certain things and rule certain ways in cases they haven’t heard.
Everybody’s got their favorite, oh, they tell me, oh, you must, must abide precedent, follow precedent, then they tell me their favorite precedent, and in the next breath they tell me I must overrule this other thing over here that they don’t like. I meet with one person, they say that, and I meet with the other and it’s the exact opposite, of course. And, I came to think, it’s one thing to think that judges occasionally, mistakenly, humanly err and follow their personal preferences over their honest views of the laws demands, and it’s another thing entirely to think that’s the way it should be, and that’s the way it is routinely, and that there is no difference between a politician and a judge.
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And then I got to learning and thinking about the subject more. Where are we on separation of powers, the Constitution, on civics education, and I was truly shocked. Only about a third of Americans can name the three branches of our government. Another third can only name one branch of government, and ten percent of Americans, apparently, believe that [Judge] Judy serves on the United States Supreme Court. Now, those who are chuckling know that she is Judge Judy. Now, I happen to like Judge Judy, but, she is not one of my colleagues.
So, the Archive does wonderful work. I’ve visited some of the presidential libraries; they do wonderful work. The Constitution Center, all sorts of wonderful organizations that are working in this area, but, I thought I owed something back too, and I wanted to put down a few thoughts on paper about these subjects.
David Ferriero 00:20:17 Separation of Powers
So, let’s get into the meat of the book. You describe it as wonkiness, but, actually, this is so well written, a terrific job in writing this book. So, let’s talk about separation of powers. Where are we?
Neil Gorsuch
So, the separation of powers. It can sound pretty dry, can’t it? Everybody understands that the First Amendment contributes to your liberty. We all get that. The Fourth Amendment, we understand that, but, I don’t think we understand or appreciate maybe everyday, maybe as much as we might, how the separation of powers contributes to our liberty, and the genius of it.
Madison wrote the Constitution, he didn’t want to write a Bill of Rights, the First Amendment through the Tenth. He thought, if we got the structure right we wouldn’t need a Bill of Rights. And he thought that a Bill of Rights was really, at the end of the day, was just a list of promises, and promises are only as good as the enforcement mechanism behind them.
Now, here’s how to test Madison in the real world.
Bills of rights, which one’s your favorite? Well, the United States Bill of Rights is pretty good. My favorite is North Korea’s. Yes I said North Korea. It promises everything our Bill of Rights promises, David, and more. You get a free education, free health care. My favorite, the right to relaxation.
Sounds pretty good, doesn’t it? Now, I’m not sure how that fares with political prisoners over there but, there you are. Now, the truth is, though, that that Bill of Rights isn’t worth the paper it’s written on because all power is concentrated in the hands of one person, a tyrant. right? That was Madison’s genius. He recognized that.
So, what am I? I am one ninth of one third of our federal government which is one half of the governments in our federal system. Divide power, that was the wisdom of Madison.
So, now that all sounds pretty academic, and maybe a little wonkish, and I confess when I learned all that in civics, which, yes, I am old enough that [video skip] it sounded pretty dry. But, as a judge, I came to realize and see in the real world the impact muddling up the separation of powers has on your liberty.
Let me give you just a few examples. What happens when judges act as legislators, and instead of following the law faithfully, begin to make things up?
Well, maybe the first real departure by the United States Supreme Court from the Constitution as it was originally written was Dred Scott. In Dred Scott the Supreme Court of the United States held that white persons have the right to own black persons in the territories of the United States, and they said that right could be found in the Fifth Amendment’s due process clause which guarantees you due process before your life, liberty or property may be taken. Now, scour the Fifth Amendment as long as you want, it’s not there. Dred Scott made it up. Now, the judges who did that thought they were doing so for a good reason, something so important. They thought that they were helping avert a civil war and that making it up was worthwhile. They acted as legislators. Judges make rotten politicians. They guessed wrong, and instead of averting the civil war they helped contribute to it.
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OK, that’s one angle, separation of powers. What happens when the legislature gives up its power to make the laws and assigns it instead to the executive branch?
Well, Madison knew that legislation, lawmaking, would be the greatest potential threat to liberty and so he wanted it to be hard and deliberative and slow and careful and involve all the people; two houses of congress; arduous process; the president must sign or there must be a veto override; demanding; public; involvement of the people’s representatives elected by two different constituencies at different times. It’s supposed to be hard. It’s supposed to involve everybody, and modern political science has established that it puts minorities at the fulcrum of power because their votes are often essential in that process to get legislation enacted. We have effectively a super-majority requirement thanks to our legislative structure. That’s what Madison thought would protect your rights when you’re a minority and unpopular.
Well, what happens when you take that process and stick it in the executive branch? The president’s elected, once. maybe twice. It doesn’t have to be very public. It’s going to be a lot faster, isn’t it? You’re going to get a lot more of it, aren’t you? And you’re going to have less say in the process. And minorities are going to play a very small role. The president just needs to win the majority. So, you’ve elected your self a king for four years. Or, maybe even worse, some of the agencies don’t even much respond to the president. So, you are having law made by a bureaucracy.
Now, lest you think I’m exaggerating, let me give you a case. This is the sort of thing that persuaded me rather than academic theory. Real facts with real people. A company called Caring Heart, located in my home state of Colorado. Saw this as a Tenth Circuit Judge. All of this stuff is in the book.
Caring Hearts vs. Burwell. It [Caring Hearts] provided home nursing care through medicare, and they were accused of medicare fraud by the government and fined $800,000. As you know, being accused of fraud by the government is a pretty serious thing. It can be a business ending proposition. Life ending proposition, really, for people and their livelihoods. Years of litigation go by and what do we find out? That Caring Hearts had abided all the rules, all of them, that the executive branch agency had made for them to abide at the time they rendered their services, and the government was accusing them of violating rules that it hadn’t even yet created at the time. It was making up rules so fast that even the government became confused.
The 2nd branch. Now, what happens when the executive branch plays judge?
I see cases in which veterans and immigrants (they’re all in the book), veterans and immigrants have a winning legal argument. Veterans seeking benefits for PTSD, immigrants seeking lawful admission in this country, and I as an independent judge, I think they should win. They have a winning argument under the law. but we have doctrines now that say independent judges don’t get to interpret the law, a bureaucrat does, and I, a Supreme court Justice (whatever that is), have to defer to a bureaucrats interpretation of the law. You have a right, supposed to have a right, to an independent judge determine your rights under the law. That’s lost.
So, separation of powers, I think, is vital to your freedoms. Those are three examples. And like the rest of our Constitution though, separation of powers is only as good as the people, and the people have to want it, and the people have to protect it. I think Reagan used to say that we’re only one generation away from tyranny.
David Ferriero 00:28:47
So, would you say that the three branches are equal, are they in balance?
Neil Gorsuch
Well, I’d like to say yes. They are supposed to be, aren’t they? But I think some of the examples I just gave you make me wonder sometimes, David, whether we’re transferring a lot of legislative and judicial power, whether it’s running to the executive. I worry about that. I do.
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David Ferriero 00:29:12
So, I’m familiar with that point about the number of people who don’t know or can’t identify the three branches of government, but they add to that three quarters of Americans can name all Three Stooges. [laughter] It’s from the Annenberg study. [... snip ...]
You talk very cogently about originalism and textualism in the book, so let’s talk about originalism and cases where originalism interpretation worked or didn’t work.
Neil Gorsuch
Sure. Maybe we ought to start with what the heck is originalism? It’s a boring term. All it is, though, is the idea that judges should interpret written laws according to their original public meaning. That those terms on the page should be respected as written.
And, it’s really an idea that is ancient. In fact, if you look at the Supreme Court’s jurisprudence, you will see 100 cases if you see one that say when it comes to a statute or a contract, we interpret that document according to its original public meaning. And, so, the question originalism poses is why would it be any different when it comes to a written constitution? Our founders rejected the idea of an unwritten constitution. They knew it well. It came from an English system, no written constitution. Our framers decided instead to put certain things down, not many. There aren’t many things in the Constitution, it’s a short document, but they put down what they thought was vitally important and left the rest to us, we the people, to decide. And they also allowed us, we the people, to amend the Constitution, and originalism tries to honor that witness of the Constitution. And so judges shouldn’t be in the business of making things up, adding to or taking away from the Constitution.
So, that’s what originalism is. I hadn’t heard the phrase, originalism, David, in law school from a professor, when I was there. Isn’t that shocking? The first time I heard originalism was when, actually, Justice Scalia came to visit my law school when he was a young Justice, about my tenure now, and he gave a speech that really opened my mind. Of course, the Harvard Law Review didn’t publish the speech. It had to be published by another schools law review. That’s where we were 30 years ago on originalism. We have come some way, a long way.
Now why does originalism matter? The truth is, it was one of those theories like separation of powers sounded pretty dry and academic to me at the time, but as a Judge I’ve come to see how it affects your rights. Let me give you some examples. What happens when we depart from the original public meaning?
[My comment about “original public meaning”]
In the previous four paragraphs Justice Gorsuch mentions “original public meaning” three times: e.g.,
“...when it comes to a statute or a contract, we interpret that document according to its original public meaning. . . . Our founders rejected the idea of an unwritten constitution”.
Other than the fact that they are written for different purposes with different contexts, what is the difference between a written document called a ‘contract’ and a written document called a ‘constitution’? Words are written down to express ideas. The written words have meaning related to the ideas which have meaning to the thinker who expects that the ideas are to have an ‘original public meaning’ that will be understood and perpetually accepted by the reader of the words on the written document. Accepted ‘perpetually’, that is, until the words of contracts or constitutions are amended and accepted by all participants.
In the discussions about his book Justice Gorsuch mentions various court decisions related to the ten Bill of Rights, e.g., the Sixth Amendment and Korematsu. My questions below for Justice Gorsuch (and all members of the Supreme Court) are about Article II Section 1 clause 5 and the written words on the document which explicitly affirm that only a “natural born Citizen” is the only ‘citizen’ who “...shall be eligible to the Office of President” since the last Article II “... or a Citizen of ...” died sometime in the 1800s.
Here are a few questions for Justice Gorsuch about what he said on the videos and wrote in his book about originalism and ‘original public meaning’. I ask the questions in relation to the use of the positive law (law of people) word ‘eligible’ and the ‘legal’ basis for ‘eligible’ in Article II and eligibility to be president.
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If not only ‘legal’ heterosexual marriage, what was the community standard in 1787 America which supported the ‘common law’ of that era which informed the ‘positive law’ of that era which was intended to be perpetual which was supposed to articulate the ‘legal’ foundation which defined eligibility which was intended to be perpetual?
If not ‘legal’ heterosexual ‘unity of citizenship’ made ‘legal’ by marriage of only heterosexual males and females, what was the ‘legal’ basis in 1787 for using the word eligible?
If not ‘legal’ heterosexual marriage, why did the 1787 founders and authors of the constitution, the original birthers, say in the preamble that the constitution was written for themselves and their “Posterity” (“our Posterity” = U. S. citizens either Article I naturalized or Article II born, not Article III naturalized by fiat), and also say in Article II that to be “... eligible to the Office of President ...” a person must be only a “natural born Citizen” with only one implication possible in a long-lasting, coherent society? Because, fore eligibility to be president, the founders meant only birth with singular U. S. citizenship, not dual citizenship:
1) Only singular U. S. citizenship (which is possible)
2) Only by birth alone
3) Only on U. S. soil
4) Only to two U. S. citizens
5) Only married
6) Only to each other
7) Only before a child is born
1) For eligibility to be president does Justice Gorsuch believe that the original public meaning of “natural born Citizen” concerning eligibility to be president was clearly understood by the delegates and the states’ ratifiers in 1787 America?
2) For eligibility to be president does Justice Gorsuch believe that the original public meaning of “natural born Citizen” concerning eligibility to be president was clearly understood and not debated in 1787 by the delegates and the states’ ratifiers?
3) For eligibility to be president does Justice Gorsuch believe that the original public meaning of “natural born Citizen” concerning eligibility to be president was not clearly understood in 1787 by the delegates and the states’ ratifiers?
4) For eligibility to be president does Justice Gorsuch believe that the original public meaning of “natural born Citizen” was debated in 1787 and it was not clearly understood by the delegates and the states’ ratifiers?
5) For eligibility to be president does Justice Gorsuch believe that “natural born Citizen” had the same ‘original genesis’ and implicit original public meaning in 1787 America as it does in 2000s America?
6) For eligibility to be president does Justice Gorsuch believe that “natural born Citizen” has the same ‘original genesis’ and implicit original public meaning in 2000s America as it had in 1787 America?
7) For eligibility to be president does Justice Gorsuch believe that in 1787 America the original public meaning of “natural born Citizen” meant by birth alone with only singular U. S. citizenship?
8) For eligibility to be president does Justice Gorsuch believe that in 1787 America the original public meaning of “natural born Citizen” meant by birth alone with dual citizenship?
9) For eligibility to be president does Justice Gorsuch believe that in 1787 America the original public meaning of “natural born Citizen” meant birth must be only on U. S. soil (and U. S. jurisdiction on foreign soil)?
10) For eligibility to be president does Justice Gorsuch believe that in 1787 America the original public meaning of “natural born Citizen” meant birth could be on either U. S. soil or foreign soil?
11) For eligibility to be president does Justice Gorsuch believe that in 1787 America the original public meaning of “natural born Citizen” meant birth must be only to two heterosexual U. S. citizens married only to each other before a child is born?
12) For eligibility to be president does Justice Gorsuch believe that in 1787 America the original public meaning of “natural born Citizen” meant birth must be only to two heterosexual U. S. citizens who have the
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1700s to 1900s era (until the 1922 Cable Act) common law ‘unity of citizenship and allegiance’ by ‘legal’ marriage?
13) For eligibility to be president does Justice Gorsuch believe that in 1787 America the original public meaning of “natural born Citizen” meant birth must be only after the U. S. citizen parents are married only to each other?
14) For eligibility to be president does Justice Gorsuch believe that in 1787 America the original public meaning of “natural born Citizen” meant that only by birth alone to two heterosexual U. S. citizens ‘legally’ married only to each other could the ‘unity of citizenship and allegiance’ of the parents be passed to their child born after their marriage?
15) For eligibility to be president does Justice Gorsuch believe that the ‘legal’ marriage of the parents is the only positive law (law of people) way possible for the child to derive singular U. S. citizenship by birth alone?
16) For eligibility to be president does Justice Gorsuch believe that in 1787 America the original public meaning of “natural born Citizen” meant birth must be only to two heterosexual citizens ‘legally’ married (not with multiple wives)?
17) For eligibility to be president does Justice Gorsuch believe that in 1787 America the original public meaning of “natural born Citizen” meant birth could be to two heterosexual citizens ‘legally’ married with up to four wives as Muslims have done for centuries, and multiple wives as some Mormon sects (and others) still do?
18) For eligibility to be president does Justice Gorsuch believe that in 1787 America the original public meaning of “natural born Citizen” meant birth could be to homosexual citizens with the help of surrogates and in vitro / in vivo?
19) For eligibility to be president does Justice Gorsuch believe that in 1787 America the original public meaning of “natural born Citizen” meant birth could, in the future, be to ‘transgender parents’ (whatever ‘parents’ would mean), because, who knows what’s coming down the road, so, to be inclusive, whatever is coming is to be construed to be implicitly in the “unwritten constitution”? [End of comments]
Neil Gorsuch
The alternative is something people like to call a living constitution. Alright, now that actually sounds pretty good. Who wants a dead constitution? How about an enduring constitution? I like that. A lasting constitution. Your constitution, not mine. Living, who does the living? The judges do the living. Here’s what happens when judges do the living, they evolve your rights and some go away and some new ones appear.
Now, if you doubt me, here are the examples. Take the Sixth Amendment. The sixth amendment to the constitution says you have the right to a trial by jury of your peers when you are accused of a crime. It says you have a right to confront the witnesses against you in that proceeding. Yet, the Supreme Court in living constitution decisions have said sometimes you don’t have a right to a jury. Sometimes other things are more important, we think, so we’re going to give you a judge. Your rights are balanced away.
How about that right to confrontation? You usually get it, the living constitutionalists have said, but sometimes, sometimes there is other pressing business, we need to move on. So that piece of paper written by a police officer, out of court, you cannot cross-examine, might be sufficient evidence to send you away for 20 years or more. Your rights taken away.
Korematsu, one of the most infamous decisions the United States Supreme Court. Japanese American citizens rounded up and detained. How do you square that with the original meaning of due process? That’s due process, right? Before your life, liberty and property may be taken you get to go before a judge. Some process, some kind, somewhere, for somebody. None of that was provided. They thought something else was more important, the war effort.
Equal protection clause guarantee? We’ll ignore that too in this case to help the war effort. Something else we think is more important. OK, some of your rights getting taken away. Then wait, there’s more. They add stuff that isn’t there.
Dred Scott is my example for you there, which we’ve talked about. Where do you find the right to own persons in the due process clause? It’s not there. So when it comes to originalism, it isn’t political, it’s not conservative. Are any of those results conservative, liberal? I think they’re constitutional. And as an originalist it’s all about preserving the constitution that you have written, and if you want to change it, you can, and we have.
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And I’m hardly here to tell you the constitution can’t stand improvement. Alright? We’ve had some terribly important improvements through the amendment process. We don’t need judges to make it up. You can fix it and you have. You have given women the right to vote. You enacted the 13th and the 14th and the 15th Amendments to the Constitution ending slavery. Judges didn’t do it. So, why ask somebody else to do what you can do for your self.
And the constitution starts with three words, and they aren’t we the judges, but we the people. Madison didn’t intend, and you shouldn’t want nine older (I can say that, I just had a birthday) people sitting in Washington, D.C. trying to rule a continental country of 330 million people.
David Ferriero 00:36:30 Rule of Law
So Scalia’s lecture was the rule of law as the law of the rules. So what’s your assessment of the rule of law in this country today?
Neil Gorsuch
I am, if you cannot tell, an optimist., and I want to share a few facts on this one, a few figures, ok. Bear with me. People say to me – I meet pessimistic people all the time and they say, oh, court this, the Supreme Court that. Alright. I say, yes, we can quibble about this or that case, fine, but shouldn’t we step back just a minute and look at the forest? Let’s not focus just on the tree. I'll get to the tree in a minute, I promise, but let's look at the forest first.
In this country every year there are 50 million lawsuits filed. We are a litigious bunch. Now, I’m not counting your parking tickets. [laughter] and I’m not counting your traffic speeding tickets. That’s another 50 million, ok. Just 50 million lawsuits every year.
Alright. Now, I’m going to move to the federal court system because I know that system better, but the numbers in the state court system are probably even more impressive. Of all those cases that wind up in the federal court system, 95 percent are resolved by a trial court, a judge and a jury. Done, that’s the end of the case. Now, I represented many losing parties, and anybody who is a lawyer for a while and tells you that he hasn’t is trying to sell you something. Alright. They were not happy, always, with the decision of the court. They were upset by it, but they accepted it 95% of the time because they were heard. They were heard and they knew that it was reasonable. They could accept it 95% of the time. That’s pretty powerful, I think, evidence about the rule of law in this country.
Alright, now let’s talk about what goes up on appeal. I served on the Tenth Circuit which oversees 20% of the continental United States; two time zones. I served with judges who were appointed by President Obama back to President Lyndon Baines Johnson. One of my colleagues was appointed the year after I was born. The Tenth Circuit is as diverse a group of judges as you will ever encounter, on whatever metric you wish to assess diversity. It’s a wonderfully collegial court, actually a model of collegiality in the judiciary, known across the country for that. So, we sit in panels of three. So, we have to convince our colleagues of the outcomes. We hear 5% of those cases, right, we manage to reach unanimous agreement 95% of the time on cases.
OK, fine. Now we’re moving from the forest to a little cove, now let’s talk about the tree. The United States Supreme Court. It hears 70 cases a year; 70. I have colleagues out west who hear 70 cases in the morning and another 70 after lunch, and that’s an easy day for them. OK, but these are the hardest cases in the country, The 70 the Supreme Court of the United States hears, they’re tough. They only take cases usually when there’s been disagreement between the circuits or the state supreme courts. The idea is to make sure that law, most of what we do is to ensure the law is the same across the country. The same statute shouldn’t be interpreted, or the same provision of the Constitution, shouldn’t be interpreted to provide different rights and responsibilities in one part of the country than the other. That’s what we do. 70 cases, there are only 70 of those every year. Think about that. That’s incredible. It’s incredible, only 70.
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Fine, you say, alright, what about those 70? Now we’re down to the branch and we’re getting to the needles. Alright, 70 cases a year. There are nine of us; not three anymore, nine. Not from 20% of the country, from all of the country. Appointed by five different presidents over the course of 25 years. Now, I have to admit New York City may be heavily represented amongst us, but that’s a whole ‘nother discussion.
I ask people, how do you think you’re doing? 40% of the time in those 70 cases we reach unanimous agreement on the cases our lower court colleagues have disagreed on vehemently. That doesn’t happen by magic That’s hard work, that’s collegiality, that’s mutual respect. Try to get nine people to agree on where to go to lunch.
Alright. Now we’ll get to the needle you all want me to talk about, the 5-4 decisions.
OK. They represent only about 25 to 33% of our docket. That’s it, that’s it. They say, oh, but there are more now than there used to be. No, no. Those percentages, the unanimity 40% and the 5-4s, about 25 to 33%, those figures have remained the same since 1945, more or less. Now back then, you history buffs will remember, Franklin Delano Roosevelt had appointed 8 of the 9 justices of the Supreme Court of the United States. And, if we’re doing as well as they did, 8 of them appointed by the same president, I think we’re doing ok. And the truth is, the only thing that has changed is that nothing has changed, David. And in those 5-4 decisions this last year, they don’t tell you this either, there were ten different combinations of justices formed in those 5-4 decisions. The rule of law in this country is one of the wonders of the world. It is the envy of much of the world. I’m not here to tell you it’s perfect, but I am here to tell you we have a wonderful inheritance, a blessing, and we should appreciate that.
David Ferriero 00:43:20 Access to Justice
So, etched over the entrance of the Supreme Court are the words “equal justice under law”. And you say in your book, “few Americans can afford a lawyer. I couldn’t afford my own services when I was in private practice”.
Neil Gorsuch
And I really can’t now. [laughter].
David Ferriero
So comment on access to justice in this country.
Neil Gorsuch
I am not pollyannaish about America. I think we have a lot of good reason to be optimistic about America. And I do have a discussion in the book about access to justice issues because I think we should look with clear eyes at areas where we can improve. I worry when nobody can afford a lawyer. It takes way too long to get to trial if you’re lucky enough to get into court. When you get there you don’t get a jury, and just look at how many things are now criminalized.
I asked my law clerks how many federal criminal laws are there, and they came back and told me there’s about 4,000, 4,500 federal criminal statutes. That’s on top of everything in the states, and I said, yeah, yeah, yeah, that’s interesting, but, all the delegated legislative authority over to the agencies, they get to make criminal laws now too. Like Caring Hearts, right? How many of those criminal laws are there? And they came back, they really scratched their heads, they went to the library. I had to ask them a few times for an answer. I finally got this. Boss, they stopped counting. They stopped counting. They stopped counting I think the 1990s. Even academics can’t keep up. At that time it was over 300,000 federal criminal laws created by agencies. Now, some of them are vitally important. But some of them? I give a couple of examples in the book. The bostwick consistometer? If your ketchup flows through it too quickly and you don’t label it as substandard, that is a problem. That’s a problem. If you sell mattresses and you tear off the tag, oh, you’re a federal criminal. [laughter] I have law professor friends who say, literally, they think probably pretty much everybody over the age of 18 in America has probably committed a federal crime. I worry about access to justice. I worry about over criminalization. I worry when the prosecutor can pick his victim rather than pursue crime.
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What do we do about it? That’s a long discussion but let me rattle through a couple of ideas. I don’t have all of the answers, but these are things I think we all need to think about.
Do you need a lawyer to do every little thing, write a will, help you with an uncontested divorce? Lawyers get to regulate themselves. They’re the only profession that gets to regulate themselves. I think as lawyers we have to ask ourselves, do all our regulations really help our clients or some of them only help us? Does it really take the three years of law school to become competent to provide any legal advice? In England you can get a law degree in three years as an undergraduate or one year in a conversion course as a graduate student. Do we need three years on top of the four years undergraduate education? A lot of young people I know come out in debt so high they can’t afford to be main street lawyers. They have to go to work for big firms even if they don’t want to. Us judges, we should look to ourselves, to our rules. We have something called discovery, civil discovery which is supposed to help people figure out what the case is about before trial. It turns out civil discovery often yields very little discovery and is sometimes anything but civil. And, it takes a long time and it costs an awful lot. And I know people who call themselves trial lawyers who haven’t tried a case in 20 years, but they can write something called an interrogatory in civil discovery, they can write that interrogatory in iambic pentameter. They’re really good at it, and I think we have to ask ourselves, why shouldn’t you be able to get to trial before a jury of your peers in about six months in pretty much every case?
Those are some of the things I think about. There’s more in the book.
David Ferriero 00:48:26 Fun at the Supreme Court
So, it sounds like it’s a very serious environment, but I know better having read the book. You are going to have a lot of fun up there.
Neil Gorsuch
I know we live in a world where everybody wants to create enemies and divides, and we all are subject to click bait, aren’t we? But, the truth is that the Supreme Court, like most courts in America, is a very collegial, warm and wonderful place to come to work. It’s a tiny little place, only a couple hundred people work there, maybe a few hundred, I don’t know, but you get to know people. The kids trick-or-treat in your office. You know, we flip hamburgers at the cookout. We even let law clerks make fun of us in a skit at the end of the year, and, boy, to they. That’s a whole ‘nother story.
Do we disagree? Yes. You’ve given us the 70 hardest cases in America. Of course we’re going to disagree sometimes, but we do it civilly when we do. We do it collegially and we have fun doing it. We sing happy birthday to one another, poorly but enthusiastically. We sing together at the holidays. We eat lunch together an awful lot. Every day we have conference, more argument. Lunch is available in the justice’s lunchroom. Now, it’s bring your own, we work for the government.
And, Justice Breyer, we don’t talk shop. We don’t talk shop at lunch. Justice Breyer’s grandchildren seem to be a reservoir of nearly endless knock knock jokes.
And there are practical jokes, too. I don’t think Sonia would mind me telling this one. So, one day – we all line up in our robes as we go out to the courtroom after we shake, we shake hands every time we gather, 36 handshakes, no matter how tense, no matter what’s going on, there are 36 handshakes. That’s been going on for 150 years, ish. Well, one day we’re lining up after our handshakes and Justice Sotomayor comes in and she’s not wearing her usual beautiful robe. This one’s got pinstripes on it and a New York Yankees emblem across her chest. [laughter] Now, I guess the Yankees had done well recently and she was pretty excited. But, I think a few of my colleagues were a little nervous about this, and we’re lining up to go into the courtroom and finally one of them says, Sonia, are you really going to wear that out on the bench? And she says, no, but I was just waiting for someone to ask. [laughter]
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When a new justice arrives, the most junior justice, everything’s done by seniority in the courts, the most junior justice has to throw a party to welcome the new justice, and Justice Kagel, when Louise and I arrived, thew the most wonderful evening in which she made sure we had Indian food because she knew that Louise loves Indian food. And she got a chef she knew here in Washington to come and cook for us and it was magnificent.
Well, when Justice Kavanaugh arrived, I knew he was kind of a meat and potatoes guy, and so dinner was going to be kind of boring. I had to come up with something, something to liven up the evening. So I said after dinner, everybody follow me, and we went down to the great hall in the Supreme Court of the United States, that big marble hall, and I handed the Chief Justice a checkered flag. Well, now, Justice Kavanaugh is a huge baseball fan, he loves the Nationals and their mascots are these Presidents, they have giant foam heads and they run around. And Jessica Bartlow, who is here tonight, my assistant of many years, a dear friend, came up with the idea, and she found out you can rent them [laughter], So she went online and we rented two of the Presidents and we had a race in the great hall in the Supreme Court of the United States. Now, that was one where I thought maybe it would be to ask for forgiveness than permission. I think that it went pretty well.
David Ferriero
We had them here in the Rotunda running around. I have a wonderful photograph of Abraham Lincoln looking at his autopsy report. [laughter] [applause]
Neil Gorsuch
We’re all just people.
David Ferriero 00:53:33 Civility and Citizenship
Hear, hear. For me the most important part of the book, personally and professionally, is your section on citizenship and civility. So, talk to us about citizenship.
Neil Gorsuch
So, civility and citizenship. I don’t know when civility became a bad word, or manners became a word that we don’t even use anymore. Now, is our republic supposed to be a little raucous? You betcha. You betcha. And an elbow thrown here or there is part of the game. After all, the whole point of a republic is that everybody can feel free to speak his or her mind, and know confidently that you can. Right? That doesn’t happen everywhere in the world. And the whole point there is it is a marketplace of ideas, and we hope through a republic the best ideas will emerge. So, yeah, it should be a little raucous. but we shouldn’t forget that everybody involved in the process is a human being too. And, what is civility really, other than the recognition of the equality of the other person I’m talking with. And I do worry when I read and I meet young people, the statistics are there too, 60 to 70% of young kids say they don’t want to get involved in public service because of the nature of our civic discourse today. Social media? I think it is really hard for you young people. Much harder than when I was coming up. I read that 25% of parents remove children from schools because of cyber bullying. I do think we have to talk about this and we have to worry about this.
America, and this goes to citizenship too. My wife’s an immigrant. A lot of you may be. You know about, you choose to become Americans. And, what’s special about America is we’re bound together by ideas. Most other countries in the world there’s a common culture, shared history, sometimes quite ancient. Here we have ideas that bind us together, about the equality of all persons, about the unalienable rights of individuals. That the government is there to serve us, we’re not there to serve the government. Those sorts of ideas. A limited government. And, I just think we need to think about those things.
George Washington, when he was a young person, was given 110 rules of civility and decent behavior and company written by the Jesuits in 1595, and he had to copy them out. We used to teach civics and we used to teach civility.
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David Ferriero
Number 110, “labor to keep alive in your breast that little spark of celestial conscience”.
Neil Gorsuch
That’s a good one. They are not all quite good. [laughter] Another one, I don’t know the number, something like, do not speak, do not speak so vehemently, or approach your opponent in debate so closely that you bedew the other man’s face with your spittle [laughter]. As my teenagers would put it, say it don’t spray it. [laughter] Now, I don’t know if we need those rules. We’re a little old-fashioned, I get it. But, the rule that works for me is one Louise’s grandmother taught us after a long eventful life. She said, you’re gonna have many regrets in life, I guarantee it, no avoiding it, sorry, hate to break it to you. There are going to be things you say or do you regret. There are going to be things left unsaid and you didn’t do you are going to really, really regret. But, the one thing in life that you will never regret is being kind,
David Ferriero 00:58:08 Mentors
So, you have a wonderful chapter on the art of judging in which you pay homage to your mentors. So, talk a little bit about what it was like to clerk for and then be a peer of one of your mentors.
Neil Gorsuch
Oh, Justice Kennedy. Yeah. Young people, we’ve got a bunch of them in the audience, pick your words carefully. I used to teach ethics for many years at the University of Colorado Law School and the one fact always struck me, empirical work on young people, is that you will pattern your professionalism, your ethics, on your first bosses, so pick them carefully. You have to find a job, I know, they choose you, but you choose them too. Be careful who you choose. [snip]
David Ferriero 01:04:21 Obituaries and Epitaphs
Which is why in your ethics course, you have a very interesting assignment that you gave your students, to write their own obituaries.
Neil Gorsuch
Yes. Justice White, before we leave him, what he was trying to tell me was what I think Webster said, right, that miracles don’t come in clusters, and that what happened here for the first time in 6,000 years of human civilized history, a written constitution by the people, of the people, for the people isn’t something that we can take for granted will happen very often.
Now the obituary. So, yes, toward the end of the semester in my Professionalism and Ethics class, I would ask students to spend five minutes writing their obituary. And, they usually start off snickering, what a corny exercise. And, maybe it was a little bit, but after about five minutes things got pretty quite in that room. Always. They got pretty serious about it. And then I’d ask a few brave souls if they wouldn’t mind reading out what they’d written. And I’ll tell you, not once did they ever write about how much money they made or car they drove, how many clients they brought in or if they were a rainmaker in their law firm, what the hourly rate was as a lawyer. They always wrote about being kind to their family, their friends, and maybe leaving the place a little better, or at least no worse off than they found it. I’d tell them at the end of the semester, do me a favor. Do me one favor. Keep that document. Stick it in a desk drawer and every so often when you’re wondering what’s it all about or feeling a little blue, take that out and assess how are you doing on the metrics that really matter.
I do something similar. I have an obituary, an epitaph, from the tombstone of a lawyer in the early Republic that I found in law school in the old granary burial ground.
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David Ferriero 01:06:46
Would you read it to us?
Neil Gorsuch
Well, at least it’s in big enough print that I can. Thank you. He was forgotten. He was forgotten, as we all will be, and should be as a judge. That was what White was trying to tell me. Presidents should be remembered. Maybe even the occasional senator, congresswoman. Judges, our job is just to make sure the rule of law is passed down from one generation to the next, to hand you your Constitution, carry the baton for the day.
David Ferriero
Thank you very much for being on our stage this evening [applause].
[My comment about the “epitaph”]
Here is the start of the epitaph on the tombstone which is followed by Justice Gorsuch’s quote on the video: “Here Repose ... his age ...” is in the book:
“Here Repose the Remains of INCREASE SUMNER. He was born at Roxbury November 27th, 1746 and died at the same place, June 7th, 1799 in the 53rd year of his age. As a lawyer …”.
The text which Justice Gorsuch read from the paper handed to him on the video follows with one correction from the book indicated in brackets in the next paragraph:
“As a lawyer, he was faithful and able; as a judge, patient, impartial, and decisive; as a chief magistrate, accessible, frank, and decisive .... [the full epitaph found on the last picture in the book includes: “and decisive; as a chief magistrate, accessible, frank, and independent”]. In private life, he was affectionate and mild; in public life, he was dignified and firm. Party feuds were allayed by the correctness of his conduct; calumny was silenced by the weight of his virtues; and rancor softened by the amenity of his manners”. [End of comment]
#4) National Constitution Center
→ https://www.youtube.com/watch?v=wR9Q-Xm7JJE
Posted September 17, 2019
Justice Neil M. Gorsuch joins National Constitution Center President and CEO Jeffrey Rosen for a special Constitution Day conversation exploring his new book, A Republic, If You Can Keep It.
Website address:→ https://constitutioncenter.org
YouTube channel:→ https://www.youtube.com/user/ConstitutionCenter/videos
Interactive Constitution:→ https://constitutioncenter.org/interactive-constitution
Jeffrey Rosen 00:00:14 Introduction
Ladies and gentlemen, welcome to the National Constitution Center, and happy Constitution Day.
It has been the happiest of Constitution Days, starting at 9 am until this exciting moment, we’ve had four thousand school kids in this wonderful building, hungry to learn about the Constitution. We launched this exciting, new internet platform, the Interactive Constitution, that I want all of you to check out; not now because we’re here to listen to Justice Gorsuch, but after the show. And this amazing new platform includes both the best educational materials about the Constitution and our great new program called Constitutional Exchanges that unite classrooms across the country for discussions about the Constitution moderated by judges and master teachers. The college board was here and they signed up teachers in nearly 40 states to bring in their kids. We’re going to reach tens of thousands of kids with this great platform which has received 25 million hits since it launched, and I just can’t wait for you to learn from it.
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And, one of the great thrills and honors of today has been to celebrate our first Constitution Day with the new Honorary Chair of the Constitution Center, Justice Neil Gorsuch. He has been so extraordinarily generous with his time and his passion for promoting civics and civility. He captivated a group of hundreds of school kids in the Kimel [sp?] Theater this afternoon, and he is such an effective evangelist for the importance of constitutional education that all of us at the Center are so honored to work with him spreading the light of civics and civility.
So, I’ll just begin, Justice Gorsuch, before we begin talking about your wonderful new book, A Republic, If You Can Keep It, by saying how grateful and honored I am that you’ve come to join us here as Chair of the National Constitution Center.
Neil Gorsuch
Well Jeff, it’s my honor to be affiliated with this organization. I’ve known Jeff Rosen for almost thirty years. He’s a good man. He’s a straight shooter. He loves our Constitution. He’s an evangelist for our Constitution, and he’s a gem of a person. And, when Jeff calls and asks me to do something, the answer is yes. We share a passion for this project, and I am honored and I’m humbled to be a part of it. [snip]
Jeffrey Rosen 00:03:34 How Life Changed
00:11:25 Why Write the Book
00:14:03 Civics and Civility
You have a chapter on civics and a chapter on civility, so, let’s talk about each of them. In turn you describe the crisis of civic knowledge in this country. All of us, I think, are familiar with the alarming statistics. You cite some of them. A third of Americans can’t name all three branches of government. Only a third can name a single one, and the list goes on. Tell us about the crisis of civics as you perceive it, and how are you hoping to address it?
Neil Gorsuch
The confirmation process made me curious. Where is this coming from? And as you say, only a third of Americans can name the three branches of government. Seventy-five percent (75 %) can name the 3 stooges. [mild laughter] It gets worse. Ten percent (10 %) apparently believe Judy Sheindin sits on the United States Supreme Court. And those chuckles are from people who know that that’s Judge Judy. Now, I love Judge Judy, but she’s not one of my colleagues.
So, we have a problem. We’re not teaching civics anymore in school, and I just don’t know how a republic, “a thing of the people”, can survive if the people don’t know anything about their thing.
I think it was Jefferson who said, those who think an ignorant people can remain free want something that never was and never will be. The first three words of the Constitution, as we were just discussing earlier, right, aren’t “we the states”. The earlier draft, as you point out in your Interactive Constitution, started off that way. Rejected that; it’s we the people. We own this thing. Can’t fob it off to someone else. You own it. So I think we have to do something about trying to reach young people where they are and help them understand that this is a great experiment. I think the greatest experiment in history. Right.
Webster said, miracles don’t happen in clusters. It took six thousand years for a written constitution, after deliberation by the people themselves, to govern themselves. A people who thought that we can do this, that we’re able to do this wisely, and that we can do it while respecting the unalienable rights of each of us. And, through the civil war amendments, the Nineteenth Amendment, coming to recognize that each of us is equal in that process. There are wonderful systems of law and government around the world. I’m not here to criticize, and I’m certainly not pollyannish, but we have been given a great gift, a great gift in this country. And, I, it’s a republic if we can keep it. And I just sometimes think we need to reflect, to remember, whatever the problems of the current day are, what a gift we’ve been bequeathed, and what a duty we owe our children and our children’s children.
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00:17:47 Civic Knowledge
00:19:50 Civility – Listen & Talk – Fun on the Supreme Court
00:25:18 Civility & Rule of Law
Jeffrey Rosen 00:31:00 Separation of Powers & Due Process Clause
One of the many powers of this book is the education you provide about the separation of powers, and you remind us that the framers were less concerned about adopting a bill of rights than in dividing power vertically and horizontally. Why did they think that separation of powers was important?
Neil Gorsuch
I care about this a lot. I think you should too, and here’s why. Everyone knows how the First Amendment contributes to their freedoms; that’s intuitive. Separation of powers sounds boring. It sounds like high school civics which they don’t teach anymore. And it sure did to me for a long time until I became a judge and I began to see what James Madison knew. Gosh, he was brilliant. The separation of powers was key to our freedoms. It’s easy enough to make promises, but their value is only worth the enforcement mechanism behind them. And, what is a bill of rights; what is a first amendment but a promise. That’s all it is, and it’s only as good as the enforcement mechanism to keep it. Let me prove it to you.
My favorite bill of rights in the entire world is not our own. It belongs to North Korea. North Korea promises all the rights we do, every one of them. They’ve got a wonderful bill of rights, and they have a bunch of others that I kind of like; right to free education, free medical care. My favorite, a right to relaxation. I’m not sure how that’s working out for political prisoners over there. But, those promises aren’t worth the paper they’re written on because power resides in one man’s hands.
In the United States of America I am one ninth of one third of the federal, which is one half of the governments in this country. Madison knew that men are not angels and that the key to our freedom is the separation of powers. That was the big insight of the Constitution, and you’re right Jeff, Madison thought that if we got the separation of powers right we did not need a bill of rights. He wrote the Bill of Rights when he was asked to, but he didn’t think it would be necessary.
Here’s what really drove it home for me as a judge; not this academic civic stuff, but real cases involving real people in our time. What happens when you [not clear] these separation of powers? What happens when judges start playing legislator, and instead of enforcing the law start making it up like legislators are supposed to?
Well, Madison knew that the greatest dangers to our freedom would come in new laws restricting our liberty. That’s why he created two houses with representatives elected by you at different times by different electorates. It was supposed to be a hard and public business where an elbow, yes, might be thrown, or a cane. And the genius of it is, and modern political science has proven this, that, because of the way it’s structured, it really requires a supermajority to get anything done. And, what’s the effect of that? It put minorities at the fulcrum of power. Small interests, the vulnerable, the weak, the unpopular actually have a power over new laws that they would not otherwise have. They’re the fulcrum of power because that’s what’s going to protect your rights when you’re unpopular.
What happens when you move the legislative power out of the legislative branch to the executive; let the executive make the laws? The executive was never supposed to make law. It’s supposed to enforce the law once it was passed. Madison believed, after it’s passed, if it can make it through this process, it deserves vigorous enforcement, no management by committee, one president. Well, if you move lawmaking out of the legislative branch into the executive branch, you’ve pretty much given yourself a king, haven’t you? And, if not a king, maybe even worse, somebody who is not even responsive to the king, an unaccountable bureaucrat.
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If you think I’m making it up, let me tell you a story, this is all in the book, of Caring Hearts, a small company in Colorado, provided home health care to seniors in medicare. They were accused of medicare fraud. $800,000 fine, that’s pretty much the end of your business. Years of litigation go by, and what do we find at the end of it all? The executive agency that’s been allowed to make a whole bunch of new rules had churned out so many new rules that even it couldn’t keep up, and it wound up accusing Caring Hearts of violating rules that didn’t even exist when the care they provided happened, and that the company complied with every rule on the books at the time of the care provided. Even the government can’t keep up when you move legislation to the executive branch.
What happens when you allow the executive branch to judge? You’re supposed to have an independent judge say what the law is. Chief Justice Marshall said so, right, Marbury versus Madison. We all remember that.
We have cases that come before me, come before me as a judge, where I think the veteran applying for benefits because of his PTSD from Vietnam should win under the law as written. Or the immigrant seeking lawful admittance to the country is entitled to lawful admission to the country; he should win. But, we have deference doctrines now that say independent judges should no longer give their best view of the law; should instead defer to somebody who call himself an administrative law judge who works for a bureaucracy in Washington, and who is ruling for the government against the citizen. You lose your right to an independent judge.
Alright. What about the judges, just to finish the triangle of the separation of powers. What if judges started acting as legislators? That’s pretty dangerous too. An example there might be Korematsu, where the executive branch rounded up Japanese American citizens during the second world war and interned them without due process of law.
Now, the due process clause is pretty darn clear. You’re entitled to due process before your life, liberty, or property may be taken. Their liberty was taken; they were given no due process. Yet, the Supreme Court of the United States decided that there were other things that were more important, like a legislator might, but the war effort was too important. They ignored the due process clause; the equal protection clause too. That’s what happens when judges start acting like legislators; you start losing your rights. So, to me, the separation of powers isn’t some wonky, high school civics thing; it’s real. And, here’s the realest thing of all, it’s just like the rest of the Constitution. If you don’t care you’re not going to keep it. Ronald Reagan, I think, said, tyranny’s one generation away. America’s bound together by ideas, not a culture. If we stop caring about these ideas, and if we stop passing them down, stop passing them down, we forget, we lose.
Jeffrey Rosen 00:39:25 Originalism, Original Public Meaning, Due Process Clause
Such a vivid case of what you argue are the dangers of judges exercising legislative power, executive exercising judicial or legislative power and congress delegating its power to the executive, we didn’t talk about ... there is an amendment that James Madison proposed to the Constitution that wasn’t adopted, that was a separation of powers amendment It would have forbidden the executive from exercising judicial powers, and the legislative executive, and so forth.
And, that leads me to ask about originalism. You make a very strong case in this book that looking at the original public meaning of the Constitution is the right way to interpret it. Tell the audience why you think that’s the case, and, this is a very sophisticated audience, in the course of it, respond to the objections to originalism you talk about in the book, and make the case why you are an originalist.
Neil Gorsuch
Why, everybody should be an originalist, Jeffrey. [applause] And, I’m here to tell those who doubt, this is not a political thing. This has no political valence at all. This is a Constitution thing in my mind. Let’s start at the beginning.
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What is originalism. Well, it’s a terrible name, I think. The other side’s got something they call living constitutionalism. That sounds kind of nice. Who wants a dead constitution? I like to think of enduring constitutionism. Something like that. The other problem of originalism, of course, is, suggests, we all think that the original Constitution is perfect as written and does not bear any need for improvement. Which ignores, to me, the vital importance of the thirteenth, the fourteenth, the fifteenth, and the nineteenth amendments which were really our 2nd Constitution. Originalism honors them every bit as much as James Madison’s handiwork. So, let’s just get that out of the way.
What does originalism mean? It just means a judge should honor the words on the page as they were originally understood and apply them as best he or she can to contemporary circumstances. Now, when we talk about any other written law, that’s exactly what judges all agree they’re supposed to do. I can cite you a hundred if I can cite you one Supreme Court case that says when it comes to statutes or contracts, judges should apply the terms found in them according to their original public meaning. And I ask you, why shouldn’t the same be true of our written Constitution.
Our founding fathers rejected an unwritten constitution that might evolve. They knew that example, that was England. They said there are certain things that bear writing down and holding fast to forever. There aren’t very many; the Constitution’s short. But those few things are vital and should never be taken away, and should never be supplanted for, by, we the people. Those are the first three words of our Constitution; not we the judges; not we in Washington; not we the bureaucrats; not we the states; we the people.
[My comment about “holding fast to forever”]
Regarding Article II Section 1 clause 5 and “natural born Citizen” eligibility to be president, “holding fast to forever” = perpetual “natural born Citizen” exclusive eligibility = originalist and perpetual intent which implies exclusive eligibility with only singular, not inclusive dual citizenship.
For example, in 1787 America the common law of the ‘continuity of citizenship and allegiance’ from two U. S. citizens married only to each other who passed on their married singular U. S. citizenship to a child was always made ‘legal’ by marriage, and that common law understanding was recognized and accepted as inherent in the positive law (law of people), the statutes. The common law understanding was that the ‘legal’ citizen status of a female was made to correspond with the U. S. or foreign citizenship of the male by ‘legal’ marriage.
In other words, citizenship by marriage = naturalization by marriage (‘legal’ heterosexual marriage), which means that ‘born’ eligible = ‘legal’ eligible. For that heterosexual ‘legal’ by marriage alone reason, the ‘legal’ originalist meaning, the original genesis meaning, of ‘born’ in “natural born Citizen” in Article II can only change with an amendment to the Constitution. The ‘legal’ originalist meaning can not be changed with a “living interpretation” by a “living constitutionist” who wants to change the original genesis implicit meaning of ‘born’ in “natural born Citizen” by either a statute by the bicameral Congress or by a fiat (‘because we said so’) ‘opinion’ of the Supreme Court. Right? [End of comment]
Neil Gorsuch
So, originalism, I think, honors the writtenness of our Constitution. A funny thing is, 30 years ago when I was in law school, none of my professors ever used the word originalism that I remember. I think the first time I heard it was when Justice Scalia came to speak at Harvard Law School when he was about two or three years on to his tenure on the court as I am now. It happened like that [emphasis with a right hand finger snap]. He talked about originalism that struck a chord with me. I don’t think I fully appreciated it until years later when I became a lawyer and then a judge and again saw the consequences in real life, in real cases. That’s what drives things home to me. Harvard Law School at the time wouldn’t even, the Law Review. wouldn’t even publish his speech. It had to be published by another law school’s law review. We’ve come a long way, haven’t we, in 30 years?
So, here’s why I’m an originalist. The real world cases that I think make a difference to me and might to you. What happens when you depart, when you say it’s OK for judges to depart from the original public meaning of the Constitution? Well, the first thing is, you start losing some rights because judges may see other things as more important than what’s written down there.
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Let me give you a couple of examples. The Sixth Amendment of the Constitution protects your right to a jury trial when you are accused of a crime, and a right to confront your accusers. Living constitutionalists on the Supreme Court of the United States have sometimes held your right to a jury trial gives way. Sometimes you’re only going to get a judge and we’ll tell you when. There are other considerations that are more important and need to be balanced against those words. Your right to confront your accusers; pretty much the same thing happened for a very long time. Living constitutionalists held, in the Supreme Court of the United States, that sometimes a piece of paper written by a police officer can be used as evidence against you. Good luck cross examining a piece of paper, and can be even the key evidence that sends you to prison for 2 years or more. Originalism says no to that. Originalism says, I might not like that criminal myself; I may feel sorry for the police officer who has to come; I may wish that it weren’t so expensive to have a jury trial. Those are my feelings, and I should put them over here when I put on my robe. I should follow the law and not make it up.
Here’s the other thing, a funny thing that happens when you move away from the original meaning of the Constitution. Not only do you lose rights that are in it, judges start putting things there that aren’t in it. The first major departure from the original meaning of the Constitution by the United States Supreme Court was a case called Dred Scott. And Jeffrey has a wonderful exhibit down stairs on Dred Scott that I encourage everyone here to see. It’s incredibly moving. Thank you for sharing that with me today.
In Dred Scott, the Supreme Court of the United States held that a white person has the right to own a black person in the territories of the United States, and that that right exists because of the Fifth Amendment to the Constitution, and, more specifically, its due process clause. I ask you, search that clause. Search its original public meaning and you tell me where you can find that right there. And the answer is you can’t because it doesn’t exist. Now, to be fair, the justices on the Supreme Court who used a living constitution to hold otherwise, thought they were doing something more important. They thought they were helping avert a civil war. But the truth is judges make rotten politicians and we’re much better sticking to our lane. And, instead of averting a civil war they contributed to it, as we all know. Originalism says no to that. It says, a judges job is to make sure your rights are the same today, tomorrow and always.
Jeffrey Rosen 00:48:21 Objections to Originalism
Just to tee it up I’ll say that, in a sense, your right that everyone agrees about the importance of originalism. Justice Kagan famously introduced Justice Scalia at Harvard Law School saying, we’re all originalists now thanks to Justice Scalia, and I recently interviewed Justice Ginsburg and she said, I am an originalist. I believe that the Constitution is always becoming more embracive as the founders intended. Much of the objection is how to interpret the Constitution in light of changed circumstances. You’ve done that in your opinion in the global positioning system case where there was a fascinating example to translate the framers conception into the age of cell phones. So answer the objection to originalism that we shouldn’t just be bound by the dead hand of the past but have it translated in light of current circumstances.
Neil Gorsuch
Yeah. It’s somehow conservative in the horse and buggy days. I say rubbish. Justice Ginsburg and I recently did write an originalist dissent together on double jeopardy. Just the two of us. We’re making progress. We held that the original meaning of the double jeopardy guarantee precludes the states from pursuing successive prosecution for the same crime after the federal government has already tried them. The federal government and the state government try you for the exact same crime, one after the other, until they get it right, as far as they’re concerned. And, she and I were the only two people who held no, and I think that’s, my view of originalism, anyway, anyway.
Is that conservative, to say double jeopardy, you don’t have, the federal government can’t come after you after the states have?
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Is it conservative you have a right to confront your accusers, or a right to a jury trial?
Is it conservative to say that Dred Scott was wrong?
Is it conservative to say that the Fourth Amendment protects your cell phones using the original meaning, the original public meaning?
Is it conservative to say that you can’t search a house?
Here’s one of my favorite living constitutionalisms; get this one.
The police hover over your house and peer in a back yard in a helicopter. Is that a search? Is that a search that might trigger the Fourth Amendment? Living constitutionalists have actually held no. Well. James Madison, five foot two; old Jimmy Madison, he didn’t know helicopters but he knew searches, and he said if the government looks for an investigative purpose in the [word not clear] area right around your house, that’s a search and that’s gonna trigger a warrant requirement nine times out of ten. That was the common law that he was bringing into the Constitution. An originalist says, that’s a search. I don’t think originalism is anything about politics. I don’t think it’s anything about horse and buggy days, but it is about conserving the Constitution.
Jeffrey Rosen 00:51:32 Access to Justice
Access to justice, a topic you care a lot about. You talk about the declining jury trial. Why are you concerned about access to justice and what can we do about it?
Neil Gorsuch
Well, there is a whole chapter in the book on this. Lawyers are way too expensive. I couldn’t afford my own services when I was in private practice. And I really couldn’t afford them now. It takes way too long to get to trial. When you get there you don’t get a jury. And then it turns out that just about everything is criminalized now; everything. I asked my law clerks, how many criminal laws are there in the federal system? And they came back and said 4,500. That’s on top of all the state crimes. I said, no, no, no. I’m talking about all that stuff we talked about earlier, all the delegated authority that’s gone over to the executive branch, and now that agencies get to criminalize too, make laws and send you to prison. How many of those are there? They came back and said, it took them a while, they came back and said, hey boss, we don’t know. Some experts out there, surely somebody’s been counting and they said, boss, the experts gave up trying to count. They gave up trying to count 20 years ago. I said, why, how many were there then? Over 300,000.
You sell mattresses, don’t tear off that tag; you’re probably a federal criminal. Woodsy the Owl, remember him, give a hoot, don’t pollute? Well, if you misuse his likeness, I can tell you, you are a federal criminal. And, there’s something called the bostwick consistometer, and if your ketchup goes through it too quickly, this consistometer, and you don’t label your ketchup as substandard, well, you’re in trouble too. That’s a thing.
So, I do worry about access to justice, and I worry about overcriminilization. I don’t have all the answers. I have a few ideas in the book I share with interested readers.
00:53:55 Polarization
#5) George W. Bush Presidential Center
→ https://www.youtube.com/watch?v=iYM6a6aY6fo
Posted on September 18, 2019
A Conversation With Supreme Court Justice Neil Gorsuch
“Justice Neil Gorsuch discusses his book, A Republic, If You Can Keep It, which was published September 10. In a moderated conversation with Bush Center board member Larry Thompson, Justice Gorsuch reveals some of the events that have shaped his life and outlook, from his upbringing in Colorado to his 2017 Supreme Court confirmation process.”
Larry Thompson 00:03:48 Introduction
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00:12:00 Why Write the Book
Mr. Justice, why did you write this wonderful book? What prompted you to do this?
Neil Gorsuch
Well, I don’t like talking about the confirmation process very much, but, that’s what prompted me. My predecessor, Antonin Scalia, smoked a pipe during his confirmation process. He was confirmed, I think, ninety-seven – nothing (97-0). My old boss, Byron White, I think his testimony lasted only about fifteen minutes. So did mine for the Circuit Court, if that. It was a little different, the second time around, for me. I saw during that process some things that concerned me that I wanted to talk about. Civics, civility, the separation of powers and the judges role under our Constitution, what I call originalism.
I saw people who thought of judges as nothing more than politicians in robes. Everybody said, now, you should respect precedent. I want you to respect precedent, except I’ve got these three over here, I want you to overrule. And, you better promise to do it. And then, of course, I’d go meet with somebody else and they’d say, I want you to respect precedent but I want you to overrule those he wants you to keep. And I think its one thing to think of a judge as, occasionally, because we’re all human, mistakenly, allowing your personal views to influence your legal work and legal judgment. It’s entirely another thing to think of a judge as somebody who should do that, and does do that on a regular basis.
So, those are some of the things I came out of the [confirmation] process wanting to talk about in my own way in my own time. And, so, that’s the book.
00:13:50 Civics
00:15:00 Separation of Powers
I think separation of powers is vital to our freedoms, and if you don’t know how the government works, how can you operate it? Jefferson said, if you expect an ignorant people to remain free you want something that has never happened in all of human history and never will. I’m also with Webster on this. Webster said, miracles don’t happen in clusters. And what happened here took 6,000 years to occur. A government by the people for the people. A government in which we have come, overtime, to recognize the equality of all human persons and their unalienable rights as individuals before government. And, the government works for us . We’re not subjects, we’re equal citizens. And if something like that took 6,000 years to happen we shouldn’t necessarily expect it to occur on a regular basis. We should take care to preserve it.
I meet so many young people today who say to me, Larry, that, I don’t need to worry about these things because I am a citizen of the world. I’m sure you’ve heard that. What does that mean? Now, if they’re trying to tell me that they love and respect each human person and respect their dignity as an equal across the world, I’m all in, agree with them a hundred percent. But if they’re telling me there’s nothing special about this country and the inheritance bequeathed in our Constitution and the reconstruction amendments, in the bill of rights, the declaration of independence, I beg you to think again.
00:16:47 Civility & Fun
00:24:22 Life on the Supreme Court
00:26:50 Rule of Law
Larry Thompson 00:31:35 Separation of Powers
You write about separation of powers. Why is that so important?
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Neil Gorsuch
Well, thank you Larry. This, so, now we’re getting into the meat of the stuff I really care about.
So, everyone knows how the Bill of Rights contributes to their liberty, right. The First Amendment. Tell somebody the First Amendment is important they not their head and go, I agree. Talk about the separation of powers and they start dozing off, right. High school civics class, if they had civics, which they don’t anymore.
But, I really think that Madison, Madison knew the separation of powers was the key to our liberty, and that the Bill of Rights, while important; he didn’t want to write the bill of rights. He didn’t think it was necessary. He said, if we get the structure right minority rights and interests will be preserved. And, all the Bill of Rights are is just promises, right. The promises on a piece of paper, and like any promise it’s only worth the enforcement mechanism behind it.
And, if you need proof of that take a look around the world. Our Bill of Rights is excellent, but there’s some awfully good ones out there too. One of them, I commend to you, is North Korea’s. [mild laughter] I’m serious, it’s excellent, go read it. It promises everything in our Bill of Rights and more. You have a right to a free education, medical care, and a right to relaxation. Now, I’m not sure how that’s working out for political prisoners there. But those promises aren’t worth the paper they’re written on because all power resides in a single persons’ hands.
Madison knew that to protect our liberty requires the separation of powers. That’s why I am one ninth of one third of our federal government which is one half of the sovereign governments in this country, right. You know, all this sounds kind of high school civics, and I’ll be honest, all this didn’t strike home into my heart until I became a judge and I saw what happens when the separation of powers gets muddled. And I see that peoples’ liberties really are affected in profound ways.
Let me give you just a few examples.
What happens when judges ignore the law and start acting like legislators? The legislative process was designed by Madison to involve the people; public process. It’s going to be difficult, two houses. He even made sure, because of the way it’s structured, modern political science has shown us that it requires a supermajority to get anything done. It’s supposed to be hard, not easy, right. And, by making it so hard minorities would be the fulcrum of political power, to be able to say yes or no. Majorities couldn’t do it by themselves, they’d need extra help to get a bill across the line.
What happens when judges take over that role? Well, for me, an example, one example among many, is Korematsu. A decision in which the United States Supreme Court allowed the government to round up Japanese American citizens during the second world war without any kind of due process. The due process clause is pretty clear. You can’t be deprived of your life, liberty, or property without due process. There was no due process in that case. Nobody can say that was consistent with the original meaning of those words. I had a young man who clerked for me whose grandparents were interned, So, that’s what happens when judges start making things up and bending to the popular rather than doing their job. Their unpopular job of enforcing the law as written.
What happens when the legislature stops legislating and allows the executive branch to do that; delegates its legislative authority?
Well, instead of a very public process in which we all participate and minorities have a special power, the executive branch is run by one guy. You have a king making your laws for four years. Do you want a king making your laws? Maybe worse yet, the king, as we both know, doesn’t always control everybody in the executive branch. Right. There are agencies you can’t even touch, really. So you have bureaucrats making law. People accountable to no one.
What happens to minorities and unpopular interests then?
Well, we have cases in which, these come before me. These are real cases in which veterans with post traumatic stress disorder seeking benefits have a winning legal argument under the law, I think, as an independent judge, or an immigrant seeking lawful admission into this country has a winning argument, to this independent judge. But we have doctrines that say I have to defer to the executive branches’ interpretation of the law. You’re denied an independent judge, and who get hurt in that? Unsurprisingly, the vulnerable, the unpopular, the pariah, the minority interest because they’re losing the right to an independent judge and instead getting a politically unaccountable agent making that decision I had thought Chief Justice Marshall said is emphatically the province of the judiciary to say what the law is, not anyone else.
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OK, what happens when exec., that’s two angles of the triangle, those kinds of muddling.
What happens when the executive plays judge, we’re done.
What happens when it makes up laws?
Let’s do that, OK. The executive starts making up laws. This is another problem. Well, instead of laws being few, difficult, and minority protected, they come fast, they come furious, and nobody can keep up.
I tell the story in the book of Caring Hearts. It’s a small provider of home health care services in Colorado, and they were accused of medicare fraud by the department. The government said they had violated a lot of regulations. Regulations the government was allowed to make up by itself, without the involvement of Congress, pursuant to delegated legislative authority. You know, you get accused of medicare fraud, that’s the end of your business, right. An $800,000 dollar fine, crippling for them. Years of litigation go by and what do we find out? We find out that Caring Hearts had abided all the regulations that the department had created that were in place at the time it had provided its services. The department was accusing it of violating rules that didn’t even exist for years later. It was making up so many laws, the executive branch, that it couldn’t keep track.
These are the kinds of problems that happen when we lose sight of our separation of powers.
When the executive branch starts making law.
When the executive branch starts acting as a judge.
When judges pretend to be legislators.
And I just say to you, the separation of powers, Madison knew, was the key to your freedom. And, like the rest of the Constitution, it’s up to you to keep it. If the people don’t care it won’t be kept. I think Ronald Reagan said, we’re always one generation away from tyranny.
Larry Thompson 00:39:10 Originalism
So, Mr. Justice, I’ll confess, I’m a big fan for lots of reasons, but primarily because of what you wrote, before you went on the Supreme Court, about originalism. Can you talk to us tonight about why that concept is such an important concept, and briefly describe how you set it forth in the book?
Neil Gorsuch
Sure. Originalism has got a bad rap, I think. It may not be the best term, right. The opponents of originalism call themselves living constitutionalists. That sounds kind of nice. I mean, who wants a dead constitution? And originalism kind of suggests, you know, oh, I like the seventeenth or eighteenth century. I like powdered wigs, or something, right. And that it only respects the original constitution and not the amendments. Baloney, right. Originalism respects all of the Constitution. Including, really, our second Constitution, the reconstruction Amendments, the thirteenth, the fourteenth, the fifteenth amendments, and importantly, the nineteenth amendment.
So, originalism is not about horse and buggy days. What is it about? Well, it’s really a simple idea. It’s the idea that a judge should apply the words of the Constitution according to their original public meaning to the problems of the day. That’s how the Supreme Court of the United States interprets all other written laws. I can cite you a hundred cases if I can cite you one where the Supreme Court unanimously, whatever, has said that we interpret statutes and contracts according to their original public meaning, their terms.
Why would it be different for a written constitution? Our framers knew what a living, unwritten constitution looked like. England had one. They rejected that. They said, we’re going to write some things down. And, we’re going to write very few things. And, really, I think the living constitutionalists complaint is they didn’t write what they wanted to write down. They wrote down very few, but they’re all important things. Every one of them vital.
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[My comment about Prof. Amar’s “living, unwritten constitution”]
The “unwritten constitution” is in the title of a book by Akhil Reed Amar: America’s Unwritten Constitution, The Precedents and Principles We Live By (© 2012, Chapter 1, page 5):
“For starters, we must learn to read between the lines — to discern America’s implicit constitution nestled behind the explicit clauses. In short, we must come to understand the difference between reading the Constitution literally and reading the document faithfully.” [End of comment]
Neil Gorsuch
And, so, that’s what an originalist judge really says; I’m not going to make things up. It’s not for me to evolve this Constitution however I would like it to evolve.
Now, I confess, I didn’t know much about originalism in law school because our professors didn’t tell us anything about it back in the day, 30 years ago. I think the first time I really heard a forceful exposition of originalism was when Justice Scalia came to Harvard Law School and gave a talk about the rule of law being the law of rules, and he touched on this. Well, back then, the Harvard Law Review didn’t even publish his speech. It had to be published by the University of Chicago. He was then a new Justice, about as tenured as I am now, but he caught my attention and started me thinking. Kind of like the separation of powers, I think what really drove it home to me was living cases and real people and their lives, and what it means to be an originalist versus a living constitutionalist when it comes to real people and real lives.
Now, let me give you a few examples. Living constitutionalists will take your rights away. They will take the rights in the Constitution. I’m not making this up. Listen to this.
The Sixth Amendment says you have a right to a trial by jury of your peers in a criminal case, and a right to confront your accuser. Now, it doesn’t take much of a rocket scientist to know what the original meaning of those terms are. Right? I mean, that’s not hard. OK, but living constitutionalists on the Supreme Court of the United States have held that sometimes you don’t have a right to a trial by jury. There are other things that are more important. In this case or that case, in these circumstances and those circumstances, a judge will do. How about your right to confront an accuser? For a long time living constitutionalists on the Supreme Court of the United States held that you generally get the right to confront your accuser but sometimes it’s inconvenient for the prosecution. Sufficiently inconvenient that we’ll forgive them, so that a police officers written report can come in evidence, good luck cross examining that, and be sufficient enough to convict you and send you to prison for twenty-five years or more. Your rights diminished by living constitutionalism.
Now, wait, there’s more, it gets worse. Not only do they take stuff away, they put things in there that aren’t there. If you doubt me, look at the first time the United States Supreme Court really departed from the original meaning of the Constitution. We can all pretty much agree on this; Dred Scott. Dred Scott, the United States Supreme Court held a white person has a constitutional right to own a black person in the territories of the United States. Where did that come from? They said it came from the Fifth Amendment due process clause. Scour that document as long as you want, it’s history, it’s original meaning, and you will not find that there. It made it up. Now, they thought they were doing something good. As all living constitutionalists, their intentions are usually good. They usually think there is something more important. They would like to write a better constitution. They don’t think ours is good enough. And then, at that time, they thought they were trying to avert a civil war and keep the union whole. Well, judges make rotten politicians and they got it wrong. A hundred and eighty degrees, and instead of averting a civil war they wound up actually contributing to it.
So, that, to me, is what originalism is about. It’s about respecting what is and is not there. And it’s about respecting the fact that if you want to change the Constitution, we the people. Those are the first three words of the Constitution. We the people can do it, have done it. It’s called the amendment process. That’s not for nine, older, I can say that now, I had a recent birthday, older people in Washington to make new things up and take rights away, sitting in Washington, D. C., for a continental nation of 330 million Americans.
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00:45:55 Access to Justice
00:50:07 Optimism
00:54:05 Remembrance
#6) LBJ Foundation
→ https://www.youtube.com/watch?v=kNpk3pRHKLg
Posted September 20, 2019
On Thursday, Sept. 19, 2019, U. S. Supreme Court Justice Neil Gorsuch spoke at the LBJ Presidential Library about his book, A Republic, If You Can Keep It. The moderator is LBJ Foundation President and CEO Mark K. Updegrove. The introduction is by Larry Temple, Chairman of the Lyndon Baines Johnson Foundation.
Larry Temple 00:03:24 Introduction
Now, to tonight’s program. Many of you may know that in the life of our country we’ve had 45 presidents. What you may not know is that in those 230 years only 114 men and women have served on the United States Supreme Court. So it is a particular honor and compliment to us to have Justice Neil Gorsuch here tonight.
I want to make a comment about the Court. When we see newspaper, television, or radio reporting about a Supreme Court decision by a divided court, maybe a 5 to 4 decision for example, the news media report frequently states how the Republican appointed judges voted, or how the Democratic appointed judges voted, or how the Trump, Obama, Bush, or Clinton appointed judges voted. I think that’s unfortunate. Chief Justice John Roberts correctly and has publicly stated, the Court does not have Republican judges. The Court does not have Democratic judges. The Court does not have Obama judges. The Court does not have Trump judges. While its decisions frequently have political import, the Court is structured in the Constitution to be impartial and judicial, and not politically partisan.
As one who has great respect for the Court, I believe the nine members of the Supreme Court are and should be simply justices without prefix and without suffix. So, I am proud to have the opportunity to introduce Justice Gorsuch tonight without any explanation or adjective to adorn his title or position.
Very few of the other 113 individuals who served on the Supreme Court came to the Court with the qualifications, experience, and proven talent of Neil Gorsuch. He has the academic underpinning with a Bachelor’s degree from Columbia University, a law degree from Harvard, and a Doctor of Philosophy from the University of Oxford. He got his first exposure to the Supreme Court when he served as a law clerk to both Supreme Court Justices Byron White and Anthony Kennedy.
Neil Gorsuch was a prominent and successful lawyer in private practice for ten years. He experienced the government side of legal issues as Principal Deputy Associate Attorney General in the Department of Justice in President George H. W. Bush’s administration. Thereafter Justice Gorsuch served on the United States Court of Appeals for the Tenth Circuit for more than ten years where he was widely admired and respected by the legal community. Academic scholar, successful lawyer representing clients in private practice, government lawyer, distinguished judicial experience, that is why I can say few of his peers came to the Supreme Court as qualified as Justice Gorsuch.
There is one other spotlight and facet of this man. Justice Gorsuch is the intellectual leader and the most prominent advocate of originalism in interpreting the United States Constitution, and textualism in statutory interpretation. Now, some of you may say, what does that mean? Well, I would not presume to try to define or explain those terms when the preeminent expert on those concepts is here tonight. I am sure Justice Gorsuch will tell all of us what he has in mind and what they mean.
Now, moderating the conversation with Justice Gorsuch tonight will be presidential historian and President of the LBJ Foundation, Mark Updegrove, who needs no further introduction to those of you who have been here before.
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00:08:36 Life since Announcement
00:16:10 Mentors
Mark Updegrove 00:22:25 Originalism
One of my mentors, Larry Temple, was, of course, way ahead of us because he talked about something I’d like to talk about now which is originalism and textualism. You write in the book, a judge should apply the Constitution or a Congressional statute as it is, not as it thinks it should be. For me, respect for the separation of powers implies originalism and the application of the Constitution, and textualism in the interpretation of the statutes. So, what do you mean by originalism and textualism?
Neil Gorsuch
Well, now we’re getting pretty wonky, aren’t we? I like to talk about this because I think there’s some misconceptions. What is originalism. It’s a terrible label. It makes you think of powdered wigs; eighteenth century old white men. That’s not what it’s about. It’s not honoring just the original Constitution, it’s honoring all the Constitution. Its amendments, and especially our second Constitution, the thirteenth, the fourteenth, the fifteenth amendments, and of course the nineteenth amendment.
Originalism is simply the idea that judges shouldn’t change anything in it. Should try to honor it, the words, as written, and as they were understood when they were written. And, that includes the nineteenth, that includes the fifteenth and the fourteenth amendments. I consider Madison the father of the Constitution, and I have his portrait above one fireplace in my office, and above the other I have John Marshall Harlan, the sole dissenter in Plessy versus Ferguson because I consider him the father of the reconstruction amendments. The only one who got the equal protection clause and its original meaning right because who can say segregation is consistent with equal protection of the laws? Pretty brave for him to do that. Kentuckian, looks pretty grumpy, he wasn’t very popular, but he followed the original meaning of the Constitution; all of the Constitution.
So, what’s the alternative? The alternative is something called, they like to call it the living constitution. Much better label; much better labeling; much better marketing. Who wants a dead constitution? I don’t want a dead constitution. I want an enduring, vital, and live constitution too. A real one where your rights matter. And here’s what I worry about when judges depart from the original meaning and start evolving this Constitution on their own. Your rights can start disappearing. I’m not making this up.
Let me give you an example.
The Sixth Amendment to the Constitution, you lost use. I hope you know what I’m talking about. You have a right to a trial by jury of your peers. You have a right to confront the accusers against you. Now, it doesn’t take an academic to figure out what that means, and what those original words meant when spoken and written. Yet, the Supreme Court of the United States, in some living constitution decisions, have said that sometimes you don’t have a right to a trial by jury because there are other things that are more important; the press of business, the difficulty of the matter, it’s just not important enough. Yes, your going to suffer maybe 10 more years in prison, but, so what? They have balanced away your right.
What about the right to confront your accusers? Living constitutionalism, for a long time, until overruled recently in an originalist decision, said that you don’t always have a right to confront your accusers. That sometimes, a piece of paper written by a police officer, out of court, long before the trial, you could hardly cross examine that; good luck. Good luck. I don’t care how good you are, you law students out there. Tough to cross examine a piece of paper. I’ve tried. That could be enough to send a person to prison, for 20, 25 years or more.
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Originalism says no to that. It says, I might think that there are more important things, personally. I might think you’re a really bad person, you should belong in jail forever. But, it isn’t up to me to decide what your rights should be. You wrote them down. We the people wrote those things down, and we the people deserve all of them. And, not only did departing from the original meaning risk giving away rights, it also risks allowing judges to create rights that we never agreed to; we the people never agreed to.
And there, my example to you is Dred Scott. That was the first decision by the United States Supreme Court, the serious matter that really radically departed from the original meaning of the Constitution. The Supreme Court of the United States held, as most of you law students know, I hope, that a white person has a right to own a black person in the territories of the United States, and that that right emanates from the penumbra of the Fifth Amendment and it’s due process clause. And, I ask you, scour the original meaning of due process. You’re not going to find that there.
Now, members of the Court thought they were doing something good at the time. They really did. I think most of them thought they were well intentioned. That they were doing something more important than following the original meaning. They were to avert and imminent civil war. But, judges make rotten politicians and they guessed wrong. And, instead of averting a civil war they contributed to it.
So, for me, originalism is all about respecting the rights that are there, that we the people agreed to. This is a republic, after all, and you own it. And not adding to it because I don’t think nine people in Washington, however well intentioned should be making up or taking away your rights.
Mark Updegrove 00:28:56 Challenge
Let me challenge that, respectfully. The Constitution was written by a number of white men 232 years ago, 1787. How do you accurately infer what they would think in the 21st century?
Neil Gorsuch
It’s hard. Doing law is hard, isn’t it? Law students, you finding that hard? Yeah, it’s hard. I’m not here to tell you it’s easy, and I’m not here to tell you there’s always a single right answer, alright. But it’s what judges and lawyers have done for a millennium. That’s what we do. I can find you a hundred if I can find you one Supreme Court decision that says judges should interpret statutes and contracts according to their original public meaning, and I’m unsure why we shouldn’t do the same thing with the Constitution. Our founders rejected, they knew what an evolving, living constitution looked like. They came from England. They chose to write things down instead. They chose a different path deliberately.
So, is originalism tough? Yes. Are we going to have disagreements? Yes.
[My comment about eligibility to be president and “is originalism tough?”]
Here is a question about living originalism and living constitutionism. Is living constitutionism, as a way of determining, for eligibility to be president as mentioned in Article II, the original genesis implicit intent of the original birthers at the constitutional convention ‘easy’ or ‘tough’? Well, yes, easy, very easy. Not only is originalism ‘tough’ but living constitutionism is ‘easy’ to assert. The implicit possibilities of a living constitution (‘living interpretation’ = changing the intent of the meaning of the original words) are endless because penumbras of emanations seem to sprout at the most opportune time (see Griswold v. Connecticut) when lean forward progressive liberals, Democrat and Republic legislators, need a constitutional legal basis for a societal ‘good’ decision, a fiat (‘because we said so’) ‘opinion’, from the Supreme Court. The words living constitutionism mean that the words that the original birthers wrote in 1787 mean what the living constitution neobirthers assert what they mean today, and whatever they may want (need?) the original words to mean in the future.
So, according to living constitutionism neobirthers, in 1787, for eligibility to be president, the word ‘born’ in “natural born Citizen” in Article II meant dual citizenship, not only singular U. S. citizenship. See how easy it is to express living constitutionism, and why it is said to be inclusive and for that reason is said to be superior to the exclusive only singular U. S. citizenship by birth alone on U. S. soil to two U. S. citizens married only to each other before a child is born? Oh, and see how easy it is to also express living originalism to clarify who is eligible to be president? [End of comment]
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Neil Gorsuch
I’ll give you an example. We had a double jeopardy case this last term. Can the states try you for the exact same crime that the federal government tried you for already? Well, we have a double jeopardy clause in the Constitution. And, what did that originally mean? Did that prohibit two different sovereigns from trying you for the same crime? Justice Alito thought not, for the majority of the Court. Justice Ginsburg and I, doing originalist work, thought it did. The double jeopardy clause prohibits that. So, there are going to be disagreements.
But those are legal disagreements, not political disagreements. That’s not Republican versus Democrat. That’s not left versus right. That’s, what do these terms mean? What have they historically meant? And Justice Ginsburg and I in that case saw it differently than the majority as to what it meant.
I’ll give you another example. Sessions versus Dimaya, maybe a year ago. What happens when a law is so vague nobody can understand it? Does the due process clause prohibit that, and how vague does it have to be? That’s a tricky question, too, for an originalist, but there are precedents going all the way back; lot of learning about that. That’s a thing, void for vagueness doctrine. At least, some of us think it is, according to the original meaning of the Constitution. So, there I participated in striking down a law. Justice Thomas, another originalist, thought this one passed muster. There are going to be disagreements, but let me tell you something about originalist disagreements. We’re disagreeing about that meaning. Living constitutionalists, we’re disagreeing about how you want the country to change. What do you want as an individual, as a person. I don’t think, I don’t think we were hired to run the country. We were hired to apply the law as neutrally, as fairly as we are able to do.
Mark Updegrove 00:32:18 Fair Originalism
Justice, how do you respond to those who say that originalism is just a means to a conservative ruling.
Neil Gorsuch
Well. Sixth Amendment, that sound conservative? Void for vagueness, striking down a law that prohibited an immigrant from entering the country, is that, does that sound conservative? Did double jeopardy, Ruth’s and my opinion, sound conservative to you? It has no political valence whatsoever. That to me is a serious misunderstanding, and I’m hoping we’re getting passed that. There are progressive originalists in the academy and in the world today. And, our founding fathers were very progressive in a lot of ways; fourth, fifth, and sixth amendments; the fourteenth amendment. Those are progressive documents, and a faithful originalist will apply them all. You don’t pick and choose, you do your best to apply them all fairly.
00:33:28 Confirmation Process
00:37:03 Civics & Civility
00:51:30 Conference Room Discussions
00:53:53 White House Announcement
00:56:42 Access to Justice
01:01:05 Why a Jury Instead of a Judge
01:02:18 Unanimous Juries
01:02:33 Rule of Law
01:10:10 Obituary Advice to Law Students
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