Justice Neil Gorsuch visited the National Constitution Center to celebrate Constitution Day and discuss his new book A Republic, If You Can Keep It. Justice Gorsuch, the Honorary Chair of the National Constitution Center’s Board of Trustees, sat down with President Jeffrey Rosen to discuss his passion for civics and civility, the importance of separation of powers, what originalism means to him, and why he is optimistic about the future of America.
This episode is a crossover with our companion podcast Live at America’s Town Hall — live constitutional conversations held here at the National Constitution Center in Philadelphia and around the country — which is available wherever you get your podcasts.
The Honorable Justice Neil M. Gorsuch is an Associate Justice of the United States Supreme Court. Originally from Colorado, Justice Gorsuch worked in private practice before serving as the principal deputy associate attorney general at the U.S. Department of Justice. In 2006, President George W. Bush nominated him to the U.S. Court of Appeals for the 10th Circuit, where he served for 10 years. In January 2017, President Donald Trump nominated him to fill the Supreme Court vacancy created by the death of Justice Antonin Scalia. Justice Gorsuch was confirmed, and later sworn in on April 10, 2017.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
- A Republic, If You Can Keep It by Justice Neil Gorsuch
- Gamble v. United States, Justice Gorsuch dissenting
This episode was engineered by Kevin Kilbourne and Greg Scheckler, and produced by Jackie McDermott. Research was provided by Lana Ulrich, Robert Black, and John Guerra.
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Jackie McDermott: [00:00:00] Hi, We the People Listeners. I'm Jackie McDermott, the show's producer. We have some really exciting live programs coming up here at the National Constitution Center. Over the next few weeks, we'll be sharing those live programs with you here on We the People. These episodes are crossovers with our companion podcast, Live at America's Town Hall, which features audio from our live events. So, if you enjoy these constitutional conversations, please listen and subscribe to Live at America's Town Hall, available wherever you get your podcasts. Enjoy the show.
Jeffrey Rosen: [00:00:35] I'm Jeffrey Rosen, president and CEO of the National Constitution Center. And welcome to We the People, a weekly show of constitutional debate.
The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people.
Justice Neil Gorsuch is the new honorary chair of the National Constitution Center. And he visited us on Constitution Day to launch our new Interactive Constitution and to discuss his new book, A Republic, If You Can Keep It.
Dear We the People listeners, I can't wait for you to check out the Interactive Constitution at constitutioncenter.org/constitution. It's an amazing nonpartisan resource that includes the best liberal and conservative scholars in America, discussing the constitution on every media platform. I can't wait for you to explore it and to tell me what you think.
And after launching the Interactive Constitution, Justice Gorsuch sat down with me to discuss his new book, his passion for civics and civility, and why he is enthusiastic about working with the National Constitution Center to inspire citizens across the country to educate themselves about the constitution. Here's Justice Neil Gorsuch live at the National Constitution Center.
Ladies and gentlemen, welcome to the National Constitution Center and happy Constitution Day.
It has been the happiest of Constitution Days, starting at 9:00 AM until this exciting moment. We've had 4,000 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 a 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 gonna 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.
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 National Constitution Center, Justice Neil Gorsuch.
He has been so extraordinarily generous with his time, and, uh, his passion for promoting civics and civility. He captivated a group of hundreds of school kids in the Kimmel Theater, uh, 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 civic and civility.
So, I'll just begin, Justice Gorsuch, before we, uh, 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.
Justice Gorsuch: [00:04:40] Well, Jeff, um, it's my honor to be affiliated with this organization. I've known Jeff, I have known Jeff Rosen for almost 30 years. He's a good man. He is 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 ask me to do something, the answer is, yes.
Justice Gorsuch: [00:05:15] We share a passion for this project, and I'm honored, and I'm humbled to be a part of it.
And today was a lot of fun. I gotta be with a bunch of high school students, um, both in the auditorium and then out on the streets. Um, we had a few selfies and that was kind of a kick. So, it's a delight to be here, Jeffrey. Thank you for having ...
Jeffrey Rosen: [00:05:36] Thank you. Well, congratulations on the book which I read with the greatest interest. It is such a substantive, and passionate, and rigorous, and clear case for the importance of civics and civility, as well as a description of central constitutional principles that all Americans need to understand. And it also gives a sense of what, how your life has changed since you became a justice, and what it's like to be a justice, uh, stories you tell so vividly. So give the audience a sense of, how has your life changed since you joined the court?
Justice Gorsuch: [00:06:13] [laughs]. In just about every possible way you might imagine. Um, one story that kind of captures how life changed involves this young man right here, Mike McGinley, one of my former law clerks, one of yours here in Philadelphia, very, very fine young man from a beautiful family. And he was among the young lawyers at the White House, who were tasked with bringing me to Washington for my nomination. And I think that was the moment when I realized things are gonna be a little different.
Th-this picture is very near my, my home in Boulder. This is what it looks like. And Mike and another young man were tasked with bringing me to Washington, and they wanted to keep it a secret. The president wanted it to be a surprise.
Okay, fine. They arrive on Sunday night, um, and they call, and they say, “We're coming to get you.” And I-I knew this was in the cards, and so that's, that's nice, I was out mowing the lawn. [laughs] I invited them to supper, Sunday evening supper. My wife always does a nice curry for Sunday nights supper. That's her thing.
So, we had dinner. And then Mike and his friend went off to a hotel nearby, and they were gonna come collect us in the morning to take us for the flight back to Washington. So far, things sort of normal.
Well, the next morning at about eight o'clock, the President of the United States tweets. Something like, tune in tomorrow night at 8:00 for the big announcement. Well, that seemed to be the cue for every news media organization in America to descend upon the homes of the potential nominees, mine included. And within the hour, there must have been 50 or 100 camera crews camped out at the end of our little country road. And, I mean, they had cameras, and towers, and vans, and beach chairs, and the whole works. And Mike and his friend realized, there is no way two guys in suits driving a rental car, are gonna come in the only road to pick me up and get me out without being noticed. So, they scrambled. What were they gonna do?
Well, the first thing they did was, they had a quick run to the local Superstore to get local [ducts] , a flannel shirt. Good, good move. But then they realized the rental car was still the dead giveaway and they weren't gonna make it. So they called up and they said, “Judge, we have an idea. Why don't you and your wife hike ...” [laughs] “... a mile through the Prairie, and we'll pick you up at a local hiking trail head.”
Well, I love my wife very much, but dragging her roller bags through the Prairie. [laughs]
So, I said, “Mike, we're not gonna do that. I love you, but we're not gonna do that.” I said, “I got another idea. Our neighbor can drive us out. He's got an SUV and the reporters have seen him come and go. So they may not notice if we're sitting in the car with him. And if they do, I'm sorry, but that's the best I can manage.” Michael reluctantly agreed.
So, I went over to my neighbor, and I said, “Do you, would you mind?” And he said, “Of course, I'd be happy to.” And then he thought about it for a moment. And he said, “Neil, there is another way out.” And I lived there for years, and I said, “There is no other way out. There's only one road.” And he said, “There's actually this horse path ...”
[laughing] ”... and I can make it in the car.” I said, “How do you know?” He said, “Neil, I grew up in Iran during the revolution and there is no way I'd buy a house with only one way out.”
I think that's about the time it started to dawn on me that things were gonna change. And they did dramatically. Um, I completely lost my anonymity, which you don't really realize is a gift until somebody is videoing you from across the restaurant slurping your noodles over, at lunch.
But when God takes something away I've come to realize he gives you something else in return. And what I've gotten out of the process is the opportunity to meet so many people who come up to me, in every walk of life, from every background to tell me they love this country, they love our constitution as much as you do. And that's a lot. And that whether they voted for this president or they voted against this president they want us to succeed. And the random acts of kindness, just show me what a reservoir of goodwill there is in this country, how good the American people are.
I get all sorts of crazy notes and gifts. My favorite might be the woman from Florida who noticed that when I was testifying before the Senate my socks were falling down so she sent me a bag of socks.
[laughing] And the moment that maybe touched me most of all during the process, and then I'll shut up was, I'm flying back and forth between Denver and DC all the time. And I'm, I'm feeling a little sorry for myself, I'm probably a little tired at this stage. And I'm seated next to a little girl, about six-years-old. And we encountered some pretty serious turbule-turbulence, and she leans over to me, and she says, “Can I hold your hand?” And so we held hands for about 20 minutes. And then the turbulence cleared. She said, “Would you like to draw?”
[laughing] So she and I colored in her coloring book for the next two and a half hours, and I was totally anonymous, and it was fantastic.
[laughing] And at the end of it her mother comes up, and she recognized me, and she was seated behind us. And two weeks later I got a thank you note in the mail. It was a picture of a little girl and a man, stick figures, standing in front of an airplane holding hands. That is America to me.
Jeffrey Rosen: [00:13:15] That was a beautiful song from the 1940s, I think Paul Robeson sang it. That's what American means to me as well. And that's a wonderful encapsulation of it.
You talk so powerfully in the book about the fact that we are having a civics crisis in this country and a civility crisis in this country. Why did you write the book, and how do you hope to address it?
Justice Gorsuch: [00:13:40] Well, I wanna take both of the ... Can we take those separately?
Jeffrey Rosen: [00:13:42] Sure.
Justice Gorsuch: [00:13:43] But, you know, why did I write the book?
Jeffrey Rosen: [00:13:45] Yeah.
Justice Gorsuch: [00:13:46] It has to do with a lot ... A lot, a lot of it has to do with those two things. Um, during the confirmation process, at one of my dear friend's Paul [inaudible] here, he used to work with me when he was a very young lawyer, and now he has almost as much gray hair as I have. [laughs].
I'm delighted to see you on the bench, Paul. Congratulations. It means a lot to me.
Um, during the confirmation process ... You know, confirmation processes have changed a little bit. When, when my predecessor, Antonin Scalia went through it, he smoked a pipe during his hearing.
[laughing] When my old boss, Byron White, the first justice from Colorado went through it, it took 15 minutes. My hearing for the 10th Circuit took about 15 minutes too. It, it was a little different the second time around. And during that process I was surprised by some just basic misunderstandings about the constitution and the, and the judge's role in it. And people come up to me and they ... all kinds of people, want me to promise to respect precedent. That's a good thing, and then they immediately tell me about three cases they wanted me to overrule.
[laughing] And then I go over and meet with the, somebody on the other side of the aisle, and they'd say, “You must respect precedent.” And then they give me three other cases, the opposite ones, so they want me to overrule.
And I came to realize that it's one thing to think of judges as sometimes following their preferences, personal preferences. Mistakenly, we're all human, nobody's perfect. But it's another thing entirely to think of judges as politicians in robes, who should do that, and who should make campaign promises about what they're going to do to become confirmed.
And so, I wanted to write about civics, civility, the constitution, and the judge's role in it, and contribute a little bit to some of the work you're trying to do, Jeff, in your way here at the center. So, those are some of the, some of the things that led me to want to write this book.
Jeffrey Rosen: [00:16:05] Well, you do it very powerfully. And 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. Uh, you cite some of them. A third of Americans can't name all three branches of government, uh, or only a third can name a single one. Um, and the list goes on. Tell us about the crisis of civics as you perceive it and, and, and how are you hoping to address it?
Justice Gorsuch: [00:16:38] Well, I mean, that's what came out in ... So, 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. 75% can name The Three Stooges.
Jeffrey Rosen: [00:16:56] I can't even name The Three Stooges. [laughing]
Justice Gorsuch: [00:17:01] It gets worse. 10% apparently believe Judith Sheindlin serves on the United States Supreme Court. And those chuckles are from people who know that, that's Judge. Now, I love Judge Judy, but she's not one of my colleagues.
[laughing] 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, wants something that never was and never will be. And the first three words of the constitution as we were just discussing earlier, right, Wilson's, aren't we the States or the drafters, you point out, and your Interactive Constitution started off that way. They rejected that.
It's we the people, we own this thing. You can't fob it off to someone else. You own it. And 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 human history, right? And Webster said, miracles don't happen in clusters. It took 6,000 years for a written constitution after deliberation by the people themselves to govern themselves. Uh, people who thought that we can do with 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 19th amendment, coming to recognize that each of us is equal in that process.
I mean, there are wonderful systems of, 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 bequest, and what a duty we owe our children and our children's children.
Jeffrey Rosen: [00:19:47] It's so powerful. Maybe just one more beat on that because the title, A Republic, If You can, If You Keep It, you know, tell the story of, of what Dr. Franklin was thinking of. And you also have other quotations from the framers about why the Republic would falter without civic knowledge. And you make such a powerful case that I'd love you to share with the audience why the founders thought that civic knowledge was crucial to the future of the Republic.
Justice Gorsuch: [00:20:17] Well, I-I-I think I've kind of said it, Jeff, but, and ignorant people can't run the show. Somebody's got to run this place. And it's easy enough to say it should be somebody else. And I think it's even easier today, social media. I mean, I feel sorry for young people, right? Cyberbullying. I read that 25% of parents talk about moving their kids from school because of cyber bullying. 60, 70% of kids say they don't want anything to do with public service because of the unpleasantness of our society. That's unsustainable. We need to be courageous.
Let's get to Civility. I think the founders had in mind a raucous Republic. They expected a few elbows to be thrown on the field of play. They were a pretty raucous bunch themselves, right? Hamilton, Burr. [laughs]
At least we don't have a duel anymore going on. That's progress. We don't have caning on the Senate floor. You were telling me earlier today that members of Congress in that era used to run on the platform that I have a stronger right hook than my opponent and I'll be therefore a better Congressman or Senator on the floor.
So, you know, they, they had in mind a raucous Republic. But they also knew that for the whole thing to work, we had to listen as well as talk, and that was rights come reciprocal responsibilities. We demand tolerance, we have to expect tolerance.
So, I-I-I like to think the Supreme Court of the United States is a pretty good model for some of this. We disagree, of course, we disagree. My goodness, you give us the 70 hardest cases a year to deal with, we're going to disagree. But we have fun along the way, and we respect one another. We should get to some of that later. But, you know, all the clickbait you read, you know, this side against that as well. Well, whatever.
Here's my lived experience of the court on civics and civility. We have nine people who from very different points of view get together and talk in a conference room with one another, reasons through cases together, come to agreement more often than people think. I'd love to tell that story. And we have fun when we do it. We shake hands every time we meet. That's a tradition that goes back 150 years. We have lunch together every time we have argument or conference days, not everyday, but those are most of the days between October and May. We're having lunch together.
Now, it's the government, so you have to bring your own.
[laughing] We sing happy birthday to one another, Christmas carols, Hanukkah songs. And there are some truly silly moments that happen as well. Yankees did pretty well last year, I think it was. And Justice Sotomayor, who's a huge Yankees fan, that maybe her most serious failing in my book, came in wearing a robe with pinstripes on it, and the New York Yankees logo on her chest.
[laughing] And we were lining up to go on the bench. And I think my colleagues started getting pretty nervous. And finally, as we're about to go out into the courtroom, one of them asks, “Are you really gonna wear that on the bench? And Sonia, God bless her, [inaudible] , said, “No, I was just waiting for one of you to ask.”
[laughing]. That's the Supreme Court. It's 2, 300 people in that building. Many of them were working there when I was a law clerk 25 years ago, or claimed to have been. They do it for their whole lives. They do it because they believe in the mission, and they love the place. It's a special place. It's a very special place. So those are some of the ...
No, here's one more. [laughs] So, the junior justice has many, many responsibilities, cafeteria committee ...
[laughter] opening the door, a conference room, passing notes. But maybe the best one is, when, when there's a new justice who takes over that job, you've got to give a party. And when I arrived, Justice Kagan was the junior justice, and she threw a wonderful welcome party for Louise and me. She knew that Louise loves Indian food. And so she brought in a chef from a local Indian restaurant and cooked up a storm. It was fantastic. It was great.
Well, when Justice Kavanaugh arrived, I had a bit of a quandary because I knew he's kind of a meat and potatoes guy. There's gonna be no [laughs] ... nothing about the food that was gonna make the evening special. So, I had to do something in the entertainment department.
So, after dinner, I hold everybody down to the great whole of the United States Supreme court, marble, [inaudible] people [inaudible] like this. And I handed the Chief Justice a checkered flag. I knew that Justice Cavenaugh is a huge sports fan of the Washington Nationals baseball team, and their mascot are these four presidents, with giant foam heads, and they run around in races at the baseball park. And my secretary had found out, Jessica, God bless her, that you can rent these presidents.
[laughing] So we had a race in the great hall of the Supreme Court of the United States between Washington and Jefferson.
[laughing] And I figured that one, it was better to ask for forgiveness rather than permission.
Jeffrey Rosen: [00:27:01] And who won?
Justice Gorsuch: [00:27:02] Well, Washington, of course.
Jeffrey Rosen: [00:27:04] Excellent. Father of the country. Good. Justice prevails.
Justice Gorsuch: [00:27:09] That's, that's civility, right? We share so much more in common, right? We need to remember that the people with whom we disagree love this country every bit as much as we do, Jeff.
Jeffrey Rosen: [00:27:21] What is it about the institution of the court that allows civil dialogue that does not exist in, say, Congress or society as a whole?
Justice Gorsuch: [00:27:29] Oh, I don't know. I have no idea. But I wanna tell you some facts and figures along those lines, okay, when people ask you how we're doing on the rule of law in this country. And sometimes we all get depressed, right? Here's some things that are gonna cheer you up I hope. They do me, they give me hope, I'm optimistic. I'm sorry, I just am.
There are 50 million lawsuits filed in the United States every year. You are a litigious bunch.
And I'm not counting your parking tickets, and I'm not counting your speeding tickets. That's a whole nother 50 million, okay?
Out of that 50 million, 95% of the cases in the federal system, I know the federal system well, it's probably even more impressive than the state system, 95% of those cases are resolved by the trial court injury without further appeal.
I was a lawyer. I represented many losing parties. Any lawyer with assault admit that he has too. Most of the time they just want to know they had a fear hearing before a neutral person. They were hurt and they accept the judgment of that court. That happens in the United States 95% of the time. Only 5% of the cases ever make it to appeal like my old court on the 10th Circuit, 5%. Okay. W-well, what about those?
I served on a court that served 20% of the continental United States, two times zones. We had to sit in panels of three. I sat with judges appointed by President Obama, all the way back to President Lyndon Baines Johnson. One of my colleagues was appointed the year after I was born.
We reached unanimous agreement in those 5% of cases, 95% of the time. The rule of law in this country is one of the wonders of the world. It's not perfect. There's room for improvement, but it is remarkably strong.
Okay. Now, my friends who don't care about the forest like to focus on the trees. Let's deal with you. What about the Supreme Court of the United States? We hear 70 cases a year. I have colleagues back home who hear 70 cases before lunch.
And that's a slow day. Those are the hardest cases in the whole country. They're the ones where the lower courts have disagreed. That's the only reason why we take the case usually, is because you can't have the same law, meaning two different things in two different places. That's not fair to people. That's why the Supreme Court really exists, is to solve Circuit splits. That's what we call them and my clerks. I've got a future one right here, nice young man from Philadelphia.
They come and tell me, “Yeah, you don't need to take this one because the Circuit Split needs to percolate.” It isn't that serious, is what he's meaning. Now, I don't know how Circuit Splits percolate. Coffee used to percolate.
And then they tell me, “Well, a circuit split might be stale.” It doesn't really matter anymore. Now, I don't know how, I don't how a circuit split can both percolate and be stale, but let's mix our metaphors fine.
We only take 70 of the hardest cases that really matter every year, and there are nine judges, not three anymore, and we're appointed from all across the country, not just a region. Well, a lot of them are from New York, but that's okay.
And were appointed by five different presidents over 25 years. We managed to reach unanimous agreement, the nine of us, 40% of the time. Do they ever tell you about that? Can you get nine people to agree on where to go to lunch? [laughs].
All right. For those of you who really wanna focus on the needles, how about those five-fours? They exist. There are about 25 to 33% of our docket. That's it. And guess what those numbers, 40% unanimous, 25 to 33% five-four, those numbers had been stable since 1945. The only thing that's new is there's nothing new.
And here's the kicker for me. In 1945, President Franklin Delano Roosevelt had appointed eight of the nine justices. And if we're doing as well, as a court composed of eight justices, appo-appointed by the same president, I'd say we're doing all right. Last term in those five- four decisions there were 10 different combinations of justices as well. The rule of law in this country is something we, has plenty of room for improvement, but something we should be very proud of too.
Jeffrey Rosen: [00:32:48] Very well said. And reminding us of those unexpected alignments is crucial. And last term had the lowest rate of five-to-four since, I think, 2013. So, it really is important to remember that.
Uh, 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, uh, 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?
Justice Gorsuch: [00:33:22] I care about this a lot, and 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. 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 is key to our freedoms. It's easy enough to make promises, but the values only worth the enforcement mechanism behind them. And what is a bill of rights, what is the 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 kinda like, right to free education, free medical care, and my favorite, a right to relaxation.
[laughing] 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 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 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.
And here's what really drove it home for me as a judge, not this academic civic stuff, like real cases involving real people in our time. What happens when you meddle up these separation of powers? What happens when judges start playing legislator and instead of just 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 super majority to get anything done. And what's the effect of that?
It puts 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, and he thought that's what's gonna protect your rights when you're unpopular.
What happens when you move the legislative power out of the legislative branch to the executive and let the executive make new laws? The executive was never supposed to make law, it was supposed to enforce the law once it was passed. Madison believed after it's passed, it deserves ... if it can make it through this process it deserves vigorous enforcement, no management by committee of one president.
Well, if you move law making out of the legislative branch to the executive branch, you've pretty much given yourself a King, haven't you? And if not a King, maybe even worse, somebody who's not even responsive to the King, an unaccountable bureaucrat.
If you think I'm making it up, let me tell you this story. This is all in the book of Caring, Caring Hearts, a small company in Colorado, providing home health care to seniors and 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, that the executive agency, has been allowed to make 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 had complied with every rule on the books at the time of the care it 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 independent judge to say what the law is. Chief Justice Marshall said so, right? Marbury versus Madison. We all remember that. I hope you do.
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 immigrants seeking lawful admission 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 calls himself an administrative law judge, who works for a bureaucracy in Washington, and who is ruling for the government and against the citizen. You lose your right to an independent judge.
All right. What about if judges, just to finish the triangle of the separation of powers, what if judges start acting as legislators? That's pretty dangerous too. Example there for me might be Komatsu, where the executive branch rounded up Japanese American citizens during the Second World War and interned them with no due process of law.
Now, the due process clause is pretty damn 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. And yet, the Supreme Court of the United States decided that there were other things that were more important like a legislator might, that the war effort was too important, and 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 is one generation away. America's bound together by ideas, not a culture. If we stopped caring about these ideas, if you stop passing them down, stop passing them down, if we forget, we lose.
Jeffrey Rosen: [00:41:19] It's such a, uh, vivid case of, uh, when you argue with the dangers of judges exercising legislative power, the executive exercising judicial or legislative power, and Congress delegating its power to the executive, you know, we didn't ... thanks so much ... we didn't talk about the, uh, it's been a day of spreading constitutional light, and I'm getting choked up with the, uh, power of it ...
Justice Gorsuch: [00:41:52] The power of it all.
Jeffrey Rosen: [00:41:53] ... the po-power of it all. There was an amazing amendment that James Madison proposed to the constitution that wasn't adopted. There was a separation of powers amendment. It would have forbidden the executive from exercising judicial powers, and the legislative, uh, 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 that you talk about in the book, make, make the case for why you are an originalist.
Justice Gorsuch: [00:42:35] Why everybody should be an originalist, Jeffrey.
All right. 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. What is originalism? Well, it's a terrible name, I think. The other, the other side's got something they call Living Constitutionalism, that sounds kinda nice. Who wants a dead constitution?
Audience: [00:43:14] [laughing]
Justice Gorsuch: [00:43:17] I think I'd like to think of it as enduring constitutionalism, something like that. The other problem with originalism, of course, is it suggests that we all think that the original constitution was perfect as written, and does not bear any need for improvement, which ignores to me the vital importance of the 13th, the 14th, the 15th, and the 19th amendments, which were really our second 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 that 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 except 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.
So, originalism, I think honors the writenness of our constitution. Funny thing is 30 years ago when I was in law school, none of my professors ever use 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. And he was about two or three years onto his tenure on the court as I am now, happened like that.
He talked about originalism and struck a chord with me. I don't think I fully appreciated 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, law review wouldn't even publish the speech, 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 it might to you. What happens when you depart? When you say it is okay 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. And let me give you a couple 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 that 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 at the Supreme Court of the United States that sometimes a piece of paper written by a police officer can be introduced in evidence against you. Good luck cross-examining a piece of paper. And can be even the key evidence that sends you to prison for 25 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, not make it up.
Here's the other thing, 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 downstairs on Dred Scott, that I encourage every one of you to see. It's incredibly moving. Thank you for sharing that with me today.
Jeffrey Rosen: [00:48:52] Thank you for [inaudible] .
Justice Gorsuch: [00:48:52] In Dred Scott, the Supreme Court of the United States held that a white person has a right to own a black person in the territories of the United States, and that, that right exists because of the fifth amendment of the constitution, and more specifically it's due process clause. Well, I ask you, search that clause, search it's 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.
And 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 judge's job is to make sure your rights are the same today, tomorrow, and always.
Jeffrey Rosen: [00:50:13] There is a topic in this book that, uh ...
Justice Gorsuch: [00:50:16] Oh, you asked me to address? I'm sorry.
Jeffrey Rosen: [00:50:18] Oh, the objections.
Justice Gorsuch: [00:50:18] The objections. All right.
Jeffrey Rosen: [00:50:19] This, this is the National Constitution Center, and we hold debates on these questions all the time.
Justice Gorsuch: [00:50:24] Yes, yes, yes.
Jeffrey Rosen: [00:50:24] So just, just to tee it up-
Justice Gorsuch: [00:50:25] Yes, yes.
Jeffrey Rosen: [00:50:26] ... I'll, I'll say that, Uh, in a sense you're right that, uh, 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.”
Justice Gorsuch: [00:50:39] Mm-hmm.
Jeffrey Rosen: [00:50:39] 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.” So, much of the much of the objection is how, uh, to interpret the constitution in light of changed circumstances.
You've done that in your opinion in the, in the global positioning system case, where you, that was such 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 to translate it in light of changing circumstances.
Justice Gorsuch: [00:51:12] Right. Yeah, they're somehow conservative in the horse and buggy days. I say, rubbish. Um, Justice Ginsburg and I did recently write an originalist dissent together on double jeopardy.
Jeffrey Rosen: [00:51:24] And you were alone there, just the two of you.
Justice Gorsuch: [00:51:25] Just the two of us.
Jeffrey Rosen: [00:51:26] A wonderful combination.
Justice Gorsuch: [00:51:27] We're making progress.
Jeffrey Rosen: [00:51:29] What did you hold?
Justice Gorsuch: [00:51:32] We, we, we held that the original meaning of the double jeopardy guarantee precludes the State from, States from pursuing a success of prosecution for the same crime after the federal government has already tried you. Can 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 a, that my view of the original [inaudible] .
Is that conservative? Say double jeopardy, you don't have a, federal government can't, can't come after you after the states have? Is it conservatives to say that you have a right to confront your accusers or right to a jury trial? Is a conservative as say the Dred Scott was wrong? Is a conservative to say that the fourth amendment protects your cell phones using the original meaning of the, the original public meaning? Is it conservative to say that you can't search a house?
You know, here's one of my favorite living constitutional decisions. Get this one. The police hover over your house and pier in the backyard in a helicopter. Is that a search, just is that a search that might trigger the Fourth Amendment? Living constitutionalists have actually held, no.
Well, James Madison, five foot two, old Jammy Madison, he didn't know helicopters, but he knew searches.
And he said, if the government looks for an investigative purpose in the cartilage, that is an old English word for you, in the area right around your house, that's a search and that's gonna trigger a warrant requirement, 9 times out of 10. That was the common law that he was bringing in to 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: [00:53:35] Access to justice.
Justice Gorsuch: [00:53:36] Yes.
Jeffrey Rosen: [00:53:36] Is 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?
Justice Gorsuch: [00:53:44] Well, there is a whole chapter on the book on this. And lawyers are way too expensive.
I couldn't afford, yeah.
I couldn't afford my own services when I was in private practice, and I really couldn't afford them now, right? It takes way too long to get to trial. When you get there, you don't get a jury. And then it turns out just about everything is criminalized now. Everything.
I ask my law clerks, “How many criminal laws are there in the federal system?” They came back and they said, “4,500, that's on top of all the State crimes.” I said, “No, no, no.” I'm talking about all that stuff that we talked about earlier. All the delegated authority that's gone over to the executive branch, and now that agencies get to criminalize stuff too, make laws that send you to prison. How many of those are there?” They came back and said, “It took them awhile.” They came back and said, “Hey, boss, we don't know.” “So, well there's some experts out there, surely somebody's been counting.” And they said, “Boss, the experts gave up trying to count. They give up trying to count about 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're a federal criminal.
And there's something called a Bostwick Consistometer, and if your Ketchup goes through it too quickly, this Consistometer, and you don't label your Ketchup as substandard, oh, you're in trouble too. That's a thing. So, I do worry about access to justice. I worry about over criminalization. I don't have all the answers. I have a few ideas in the book though that I share with interested readers.
Jeffrey Rosen: [00:55:58] This is, as we all know, a time of extraordinary polarization. We are more, more polarized according to scholars than in any time since the end of the civil war. In 1960 there was a 50% overlap between the most liberal Republicans and the most conservative Democrats and Congress. Today there are zero overlap. And as you said, we live in an age of social media where filter bubbles and echo chambers are polarizing people and sending them into Twitter mobs and armed camps. Despite this great polarization, it's Constitution Day. This is a sacred day of celebration and learning about the constitution. Are you optimistic or pessimistic about the future of the constitution and the Supreme Court?
Justice Gorsuch: [00:56:47] Um, I'm, I'm in better ... I'm hopelessly optimistic. If not here, where? If not you, who? Human Liberty. There's a spark of it. It started in this country in a way unique in the human history and can continue.
Um, do we need to work on civility? Yes. And you know, George Washington had them, when he was young, he had to write down a bunch of rules, the 110 rules of civility and decent behavior. It was a book written by the Jesuits in 1595. We used to teach, not just civics, but also manners. And he wrote these out by hand and it's ... They're excellent rules. Maybe my favorite, though, some of them are pretty funny, one of them says, do not speak so vehemently with your opponent or approach them so closely that you [badu] the other man's face with your spittle.
“Say it, don't spray it,” My teenagers would say. But, but maybe it all boils down. We've heard it many different ways from many different people. What my, my wife's grandmother said, “You're gonna have lots of regrets in life, but you'll never ever regret being kind.” Right? Maybe we just need to remember that sometimes. I'm not throwing any stones, we all live in glass houses here. But maybe that's just worth bearing in mind.
Am I optimistic? You betcha, and here's why. I taught ethics and professionalism to the young lawyers at the University of Colorado for years. And at the end of the semester, I would always ask them to spend five minutes doing a really kinda corny exercise, I would ask them to write their obituary. And there might've been a snicker at the beginning of the exercise, and I can't blame them, it is corny, but five minutes in the room would always be silent. And then I'd ask the kids, a few brave souls to share what they'd written. And not once in all those years did the kid ever say, I want to be remembered because I made the most money, I build the most hours, I was a name partner, I was a rainmaker. They always said they wanted to be remembered by their friends and their family for being kind, that they'd done something in some small way to continue this magical experiment that is America, in their communities, there States, or the larger scale. You betcha. I'm optimistic. Absolutely.
Jeffrey Rosen: [00:59:51] Ladies and gentlemen, for all he is doing to work with the National Constitution Center, to spread the light of civics and civility, please join me in thanking Justice Neil Gorsuch.
Justice Gorsuch: [01:00:25] Thank you, Jeff. Thank you so much.
Jeffrey Rosen: [01:00:25] Today's show was engineered by Kevin Kilbourne and Greg Sheckler, and produced by Jackie McDermott. Research was provided by Lana Ulrich and the constitutional content team.
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