Neil Gorsuch is promoting his new book, A Republic, If You Can Keep It, and is doing media interviews hither and yon, even with news personalities who detest his judicial philosophy. These interviews, even the hostile ones, reveal insights into his view of the Constitution. These glimpses should exhilarate anyone who loves the Constitution and the Founders who crafted it for us.
For too long, we have been governed not by the Constitution the Founders gave us but by the one mangled beyond recognition by an activist Supreme Court, with all its penumbras and emanations and such. If we can take Gorsuch at his word, those days are over. We are headed into the sunlit uplands of a jurisprudence that would make the Founders stand up and cheer.
Antonin Scalia had been the keeper of the flame until he died. He was a towering intellect and an unapologetic originalist. His like may not come again for a long time, but it looks as though Gorsuch may fill his shoes quite nicely in the interim.
He recently sat down with Ariane de Vogue to discuss his new book. She and the CNN division of the Talking Snake Media are deeply afraid about the Court taking a “hard right turn” due to its brand new 5-4 conservative majority. But to paraphrase CS Lewis, if you’ve wandered off in the weeds to the left, the only way back is to start with a solid right turn.
Ms. de Vogue fretted that the Court will “overturn precedent.” The left pretends precedent is a sacred thing that must not be tampered with. Well, regressives had no problem with precedent being overturned when it came to Brown v. Board of Education, which reversed a “separate but equal” precedent that gave legal protection to racial segregation, a precedent which had stood since the 19th century. So maybe, if they’re honest with themselves, precedent isn’t as sacred as they pretend.
They had no problem when Obergefell overturned a 1972 precedent which declared that the definition of marriage is none of the federal government’s business. In other words, as long as the reversal of precedent lines up with their political agenda, they celebrate rather than complain. The sacredness of precedent, it turns out, hinges not on the Constitution but whether or not their ox is being gored.
De Vogue admitted to Gorsuch that if the will of the people and the rights of the states under the 10th Amendment were determinative, we would not have a nationwide recognition of sodomy-based marriage. She said, “Some states were never going to allow (same-sex “marriage”) – we needed the courts to step in.” She gives the game away here. The left for decades has realized they cannot implement their agenda through the legislative process, the one prescribed in the Constitution itself. So they have treated the Court as a super-legislature which gives them what they want by sheer judicial fiat. If they can’t get what they want through Congress, forget Congress. They’ll just get it from five unelected pseudo-lawmakers on the Supreme Court.
It’s long past time for that carnival ride to come to an end. The role of the Supreme Court is not to make the law but to apply the law. Since the Constitution reserves “all legislative authority” to Congress, that leaves none, zip, nada for the Court. The Supremes have no legislative authority at all. You can see why regressives are in a full-blown panic. Supreme Court “rulings” are not law, they are “opinions,” which is how even the Court itself describes them. There is no such thing as “the law of the land” unless it is enacted by Congress.
Gorsuch pointed out that the great majority of the Court’s opinions last year were unanimous 9-0 rulings, and that the 5-4 cases “make up (only) a quarter of our docket, maybe a third.” Those numbers, he said, “have been consistent since the Second World War.” The problem now for regressives is that, for the first time since 1947, they no longer have five justices in the bag.
Said Ms. de Vogue of Gorsuch, “You see he’s a solid conservative. He allowed the (Muslim) travel ban to go into effect. He would have allowed a citizenship question on the census. Some ways he’s carrying on the torch of Justice Antonin Scalia.” She said it like it was a bad thing.
Gorsuch was entirely correct both on the travel ban and the citizenship question. The law specifically authorizes the president to ban the entry of any immigrants or group of immigrants he believes represents a threat to America’s interests, and the census questionnaire is a matter for the executive branch, not Congress or the courts. (Besides which, the citizenship question has been on the census since 1820, and even Barack Obama’s administration included it on the long form.)
The problem, de Vogue said, is this: “He looks to the original meaning of the Constitution. He doesn’t believe that judges should invent new rights.” This is a terror to our friends on the left because the issues that will be before the Court his year involve immigration cases, the Second Amendment, LGBT “rights,” and abortion. Whatever else the left wants, the very last thing it wants is for those issues to be settled based on the “original meaning” of the Constitution.
She and Gorsuch’s critics believe that relying on original intent is “an outdated way to look at the Constitution.” This is, of course, because the left doesn’t want a Constitution whose meaning is fixed for all time by the Founders, but one which is pliable and flexible and evolves with the times, and is a mere “thing of wax” in the hands of activist judges.
De Vogue points out that “a lot has changed since 1787,” and mentioned the abolition of slavery and women’s suffrage as examples. But she played right into Gorsuch’s hands when she made that comment because Gorsuch explained if people don’t like the Constitution as written, the way to deal with it is not to ignore it, work around it, or rewrite it from the bench but to amend it. “He says if you want to change the Constitution, then you’ve got to amend it.”
That’s exactly what happened. Slavery was ended with the passage of the 13th, 14th, and 15th amendments, and we the people granted universal suffrage with the passage of the 19th amendment. That’s how it’s done. And that’s why Neil Gorsuch is the left’s worst nightmare.
The author may be contacted at [email protected]
(Unless otherwise noted, the opinions expressed are the author’s and do not necessarily reflect the views of the American Family Association or American Family Radio.)
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