Speaking in the office once occupied by the late Justice Antonin Scalia, Justice Neil Gorsuch had some choice words about Dred Scott, the antebellum Supreme Court decision that precluded black Americans from citizenship.
“It’s the first opinion of this court that really radically departed from the original meaning of the Constitution,” Gorsuch said. “And I don’t doubt the justices were well-intentioned. They thought that by creating the right to own slaves in the territories of the United States, that that would help avert a civil war. That’s what they thought they were doing. But judges make rotten politicians and they wound up contributing to the Civil War instead of averting it.”
Instead the youngest justice on the bench has called upon the people to return to politics, beginning, interestingly enough, with a return to civility. Gorsuch’s new book, A Republic, If You Can Keep It, weaves his own memoir into a scrupulous lesson on the liberties belonging to the people and the self-governance required to preserve them. The premise seems paradoxical some pages in, with Gorsuch both lamenting society’s loss of civility and the expectations of partisanship pressuring the persistent camaraderie of the most federal courts while urging Americans to become more politically vigilant and active in their self-governance. But just as the justice reiterates the necessity of an operational Constitution to protect the Bill of Rights (North Korea, he noted in his office, has an “excellent” bill of rights but concentrates all the power “in the hands of one tyrant”), Gorsuch emphasizes that incivility pushes people out of the public discourse and political sphere that requires their respectful participation to maintain with dignity.
The statistics, Gorsuch notes, spell doom for the future: A staggering 70% of millennials don’t think it’s “essential” to live in a democracy, nearly as many believe the country has a civility problem, and nearly 60% say that incivility has turned them away from political discourse and service. The justice compellingly makes the case that the latter two truths exacerbate the former.
“Without civility, the bonds of friendship in our communities dissolve, tolerance dissipates, and the pressure to impose order and uniformity through public and private coercion mounts,” Gorsuch writes. “In a very real way, self-governance turns on our treating each other as equals — as persons, with the courtesy and respect each person deserves — even when we vigorously disagree. Our capacity for civility is, in this way, no less than a sign of our commitment to human equality and, in turn, democratic self-government.”
The book, named after Benjamin Franklin’s famous quip after leaving the Constitutional Convention, doesn’t just teach America’s history or key moments in her laws, but uses both to prove the salience of his points. He details recent legal anecdotes to illustrate the importance of the centuries-old notion of separation of powers. He doesn’t pay the mere usual lip service to deriding Congress for relinquishing legislative authorities to the executive branch. Instead he works backward, documenting how a Congress that now passes just one bill for every 20 rules created by federal departments, agencies, and commissions came to be from a country that created a cumbersome legislative process by design.
Gorsuch, a proud originalist, may provide some of its best visible branding in some time. The justice, noted by many on the Left for his tendency to defend the rights of the incarcerated, knows the notion requires some better PR.
“We need better labeling, right? Better marketing. It makes it sound like it’s something having to do with your grandma’s recipes or something like that. You know, the original recipe or something like that. Colonel Sanders. And nothing could be further from the truth,” Gorsuch told the Washington Examiner.
“Madison and our framers decided not to go down the road of an unwritten Constitution, something that would evolve. They wanted to write down your rights so they would maintain your rights forever and nobody could take them away was the idea. And nobody can add other things unless we the people agree to through the amendment process. All right. So, people say horse and buggy days or other stuff. I say well, baloney. Take a look at the First Amendment, says the right to free speech. That doesn’t just mean on a soapbox or with all respect, in a newspaper. It also, of course, means you have free speech everywhere, including on the internet.”
Like his Supreme Court decisions, Gorsuch’s book is cogent and capable of being understood by those without his legal pedigree. He details rulings with the recurring annotation implied: “a judge is supposed to listen courteously and rule impartially,” a fact he noted during his confirmation hearing. The takeaway from his book includes an abundance of factual knowledge, but almost more importantly a convincing case that the judiciary must protect the law as written, while it’s up to the people to participate in the political system to protect the law itself. It’s a lesson that should be obvious, but just as the founders understood the fragility of a republic, Gorsuch knew to put down his lesson in self-governance in writing.
